State Consumer Disputes Redressal Commission
Bikram vs Dhfl Pramerica Lic on 27 February, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.497 of 2015
Date of Institution : 11.05.2015
Order Reserved on: 21.02.2017
Date of Decision : 27.02.2017
Bikram S/o Babu Ram, resident of H.No.353, Street No.4, Ward
No.9, Dashmesh Nagar, Patiala Road, Sangrur.
.....Appellant/Complainant
Versus
1. DHFL Pramerica Life Insurance Co. Ltd, 1st floor, Dr. Mittal
Building, Sunami Gate, Sangrur through its Branch Manager.
2. DHFL Pramerica Life Insurance Co. Ltd, 4th Floor, Building No.
9B, Cyber City, DLF City, Phase-III, Gurgaon-122002 through
its Managing Director.
.....Respondents/Opposite parties
First Appeal against order dated
20.03.2015 passed by the District
Consumer Disputes Redressal Forum,
Sangrur
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri Vinod K. Gupta, Member Present:-
For the appellant : Sh.Sanjeev Goyal, Advocate
For the respondents : Sh. Karan Nehra, Advocate.
AND
2) First Appeal No.694 of 2015
Date of institution : 29.06.2015
Order reserved on : 21.02.2017
Date of decision : 27.02.2017
1. DHFL Pramerica Life Insurance Co. Ltd. (through its Branch Manager), First Floor, Dr. Mittal Building, Sunami Gate, Sangrur, Punjab.
2. DHFL Pramerica Life Insurance Co. Ltd., (Through its Managing Director), First Floor, Dr. Mittal Building, Sunami Gate, Sangrur, Punjab.
First Appeal No.497 of 2015 2
.....Appellants/Opposite parties Versus Mr. Bikram, son of Mr. Babu Ram, Resident of H.No.353, Street No.4, Ward No. 9, Dashmesh Nagar, Patiala Road, Sangrur, Punjab .....Respondent/Complainant First Appeal against order dated 20.03.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri Vinod K. Gupta, Member Present:-
For the appellants : Sh. Karan Nehra, Advocate For the respondent : Sh. Sanjeev Goyal, Advocate .......................................................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common judgment, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order dated 20.03.2015 of District Consumer Disputes Redressal Forum Sangrur (in short the 'District Forum) and, thus, can be disposed of together. The order shall be pronounced by us in main First Appeal no.497 of 2015 titled as "Bikram Vs. DHFL Pramerica Life Insurance Company Ltd. & another", which has been filed by the complainant now appellant of this appeal for enhancement of the amount of insurance claim. The appellant of this appeal is complainant and the respondents of this appeal are OPs in the original complaint before the District Forum and they be referred as such hereinafter for the sake of convenience.
2. First Appeal No.694 of 2015 has been field by appellants (the opposite parties in the complaint) against order dated First Appeal No.497 of 2015 3 20.03.2015 of District Forum Sangrur, directing them to pay the amount of Rs.2,40,500/- to respondent of this appeal with interest @ 9% per annum from the date of filing of the complaint i.e. 23.09.2014 till realization, besides amount of Rs.20,000/- as compensation for mental harassment and Rs.10,000/- as cost of litigation. The respondent of this appeal is complainant in the complaint before the District Forum and parties be referred as such hereinafter for the sake of convenience.
3. Complainant Bikram filed complaint no.563 of 2014 U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on the allurement of agent of OPs, his wife Krishna Devi purchased the policy by paying the premium of Rs.24,598/-. She was insured, vide policy no. 000118198 for an amount of Rs.2,40,500/- for the period from 15.02.2012 to 15.02.2021 and the annual premium of the policy was Rs.24,598/-.
The complainant was nominated as nominee under the said policy. Unfortunately, his wife, who was insured, died on 24.10.2013 at Sibia Hospital, Sangrur due to heart attack. After the death of his wife, he lodged insurance claim being nominee with OPs, but OPs refuted the same after passage of eight months, vide letter dated 25.06.2014 on the false and vague ground that insured Krishna Devi was suffering from Bronchial Asthma and they refunded the fund value of the policy through NEFT in the bank account of complainant only. The complainant approached OPs for releasing the claim amount, but to no effect. The complainant also served a legal notice First Appeal No.497 of 2015 4 dated 11.07.2014 upon OPs for releasing the claim amount, but OPs sent the vague reply dated 28.07.2014 and refused to pay the claim amount. The complainant, thus, filed complaint against OPs directing them to pay the insured amount of Rs.2,40,500/- with all other benefits and interest @ 18% per annum from the date of death till realization, besides Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as litigation expenses.
4. Upon notice, OPs appeared and filed written reply and contested the complaint no.563 of 2014 of the complainant vehemently. Preliminary objections were taken that complaint is false, malicious and malafide; the contract of insurance is void ab initio. The complaint is alleged to be not maintainable. The insurance claim was rightly repudiated by the OPs on the ground of misstatement of material facts. Any negligence or deficiency in service was denied by OPs in this case. Krishna Devi insured expressed her willingness to obtain the said policy after understanding all the terms and conditions of Tatkal Suraksha Gold Plan and duly signed the proposal form bearing no.OT000387240 dated 10.02.2012. In declaration, she stated that no material facts have been suppressed by her. In case, if any material non disclosure is discovered, the insurer shall have the right to repudiate the claim under the policy. She answered the questionnaire pertains to her health in the negative particularly with regard to Asthma, Bronchitis, Blood spitting, Tuberculosis or other Respiratory disorders. There was declaration by the owner of the policy/insured to the effect that First Appeal No.497 of 2015 5 she had read the application and furnished the information after understanding the contents, terms and condition of the plan. The policy can be repudiated under Section 45 of the Insurance Act 1938, in case of any deliberate concealment of material fact has been done by the concerned party. The fact of issuance of the insurance policy was admitted with benefits commencing from 15.02.2012 in favour of DLA. Under the said policy, a sum of Rs.25,000/- was to be paid annually for a period of 10 years for the sum assured of Rs.1,91,405/-. Intimation was received regarding death claim of DLA on 02.12.2013. The DLA expired due to acute respiratory failure. The matter was got investigated by the Third Eye Agency. OP received the investigation report. After perusal of investigation report and documents procured during the investigation, it came to the knowledge of OPs that DLA was suffering from Bronchial Asthma and had undergone treatment prior to the date of the application and she did not disclose this information to OPs. Insured answered the questionnaire in negative regarding Asthma Bronchitis, Blood spitting, Tuberculosis or other Respiratory disorders. The DLA was under treatment much prior to signing of the proposal form for the above referred health problems. The DLA knowingly and fraudulently suppressed this material fact by giving answers in negative thereto. As per the Indian Contract Act, 1872, one of the essential elements for a valid contract is free consent. When consent to an agreement is caused by fraud or misrepresentation, the agreement is voidable at the option of the First Appeal No.497 of 2015 6 party, whose consent was so caused. The complaint was contested even on merits on the above-referred grounds by the OPs. It was averred that DLA gave reply in negative regarding Asthma, Bronchitis, Blood spitting, Tuberculosis and other Respiratory disorders. Any deficiency in service on the part of OPs was vehemently denied. The OPs controverted the other averments of the complainant and they prayed for dismissal of the complaint.
5. The complainant tendered in evidence, affidavits Ex.C-1 and Ex.C-2 alongwith copies of documents Ex.C-3 to Ex.C-8 and closed the evidence. To refute above evidence; OPs tendered in evidence affidavits and copies of documents Ex.OP-1 to Ex.OP-8 and closed the evidence. On conclusion of evidence and arguments, the District Forum Sangrur accepted the complaint of the complainant by virtue of order dated 20.03.2015. Aggrieved by order of District Forum Sangrur dated 20.03.2015, above referred two appeals has been preferred against the same.
6. We have heard Ld. Counsel for the parties at considerable length and have also examined the record of the case. First point falling for consideration in this case, is whether insured Krishna Devi understood the terms and conditions of the policy document before signing them or not. The complainant contended before us that the terms and conditions of the proposal forms were in English and she could not understand it and her signatures in Punjabi leads it to this inference that she did not understand the terms and conditions of the policy. Her signatures had been obtained First Appeal No.497 of 2015 7 by the OPs through its agent on them only. We have gone through the proposal form on the record. Proposal form Ex.OP-1 has been filled in English language and signatures on it of proposer Krishna Devi are in Punjabi script. The counsel for OPs submitted that there are also signatures of one Ram Singh on it to the effect that Krishna Insured duly understood the terms and conditions thereof before signing proposal form. We find that the particulars of Ram Singh have not been set out in it to make out as to who was Ram Singh and what was his parentage and full address. There is nothing on the record as to how Ram Singh was related to Krishna Devi. Ram Singh had signed it in English and we cannot draw this conclusion on its basis that the terms and conditions were duly read over and explained and made to understand the insured Krishna Devi before signing the proposal form. The allegations of the complainant are that the agent of the OPs inveigled Krishna Devi to invest the amounts in the policies, we, thus, find weightage in the submission of the complainant in this case that proposal forms are filled in English script by the agent and mere signatures of insured are in Punjabi script on it, which cannot lead us to draw this conclusion that she understood the terms and conditions thereof before signing it. On this point, we refer to law laid down by our State Commission in case titled as "Life Insurance Corporation of India and another versus Raj Rani" 2012(1) CLT 93, decided on 28.04.2011 that where LIC of India did not disclose the name of its agent or development officer, who filled the proposal form at the time of First Appeal No.497 of 2015 8 issuance of policies, hence, it is not proved that contents of the proposal forms were explained to insured by the agent concerned. The signatures of the insured were obtained on the blank proposal forms where the tics were marked on it. The onus is on the insurer to prove that its agent had fully explained the contents of proposal form to the insured. Ram Singh remained unknown identity in this case, whose signatures are on the proposal form. In view of law laid down by this Commission (Supra), we are in agreement with the submission of complainant that proposal form was not duly explained to the insured and it cannot be said that the insured filled the proposal form of her own voluntarily by expressing her free consent. Free consent of contracting parties is sine qua non to constitute a valid contract between them. This point is, thus, decided against the OPs and in favour of the complainant in this appeal.
7. The next point for adjudication is whether there was discrepancy in the age given by the insured in the voter list, as well as, in the pan card. The submission of the OPs before us is that policy stands cancelled on account of suppression of this material fact by insured with regard to her age at the time of taking the policy, whereupon payment of the quantity of the premium depends. It was submitted by OPs that DLA gave the pan card as a proof of her age, whereas in the voter card, age was found different. We find that pan card is more reliable document than electoral roll. Electoral rolls are prepared in routine sometimes on anecdotal basis. Estimated ages of the voters are recorded in the electoral roll and we do not find it a First Appeal No.497 of 2015 9 valid ground to repudiate the contract of insurance. Pan card carries more probative weightage with regard to authenticity of age of the insured. The contention raised by OPs before us is, thus, devoid of any merit in our opinion.
8. The last but not least forceful submission of OPs in assailing the order of the District Forum is that insured Krishna Devi suffered from Bronchitis Asthma ailment before taking the insurance policy and she suppressed this material information at the time of taking the policy and thereby obtained the consent of the OPs by means of misrepresentation, resulting into voidating the contract of insurance. The counsel for OPs strongly relied upon the treatment record of insured Krishna Devi issued by Sibia Hospital at Sangrur. The record in this regard relied upon by OPs is Ex.OP-5, the Indoor patient file bearing bed No.3 and date of admission is recorded in it as 18.05.2012 and discharge date as 27.05.2012. The counsel for the complainant argued that the treatment record Ex.OP- 5 carries no weightage because it is not signed by any doctor. We find that the record of alleged treatment at Sibia Health Care Center, Sangrur of Krishna Devi are the photocopies only. There is no original record. There are no signatures of doctor on Ex.OP-5 Indoor Patient File. The signatures of the doctor over the seal even do not exist. Seal impression of the doctor has been put on it without any signatures of the doctor. The indoor patient file at page no.192 bears the signature of Dr. Prabjot Singh Sibia which does not tally with the signature of the same doctor at page no.204. They do not tally with First Appeal No.497 of 2015 10 each other on the record ex-facie. There is no affidavit of doctor Dr. Prabjot Singh Sibia on the record that he treated Krishna Devi, who was a patient of Bronchitis Asthma disease much prior to taking the policy. In the circumstances of the case, we are unable to place any reliance on this alleged treatment record, which is only photocopy without signatures of the doctor and even signatures of the doctor do not appear to be identical wherever they existed with each other. The counsel for the OPs relied upon the final investigation report Ex.OP-4 on the record dated 30.12.2013. This is photocopy of the report of the investigator. There is no affidavit of investigator nor original report of the investigation has been placed on the record in this case. The investigator has not even recorded the statement of the witnesses, whereupon this report was based nor they are part of the report. It is rather stated that doctor did not disclose about the disease and denied anything related to the disease of the insured. In this view of the matter, when the report of the investigator is not in original being not a primary evidence nor there is affidavit of the investigator to support it nor it is based on authentic enquiry and hence we are unable to place any such reliance on this report of the investigator. Even statement of Bikram dated 17.12.2013 on the file at page no.159, nowhere proved that insured was suffering from previous ailment before taking the policy. We are fortified by law laid down by the National Commission in case "SBI Life Insurance Co. Ltd versus Harvinder Kaur and another" 2014(3) CPJ 552, wherein it has been appositely held that only photocopy of discharge First Appeal No.497 of 2015 11 card relied upon by insurance company, no affidavit of doctor has been filed. Photocopy of discharge card rightly refused to be relied upon by Fora below with regard to point of concealing previous ailment. We also rely upon law laid down by National Commission in case titled as "Kamla Devi versus LIC of India & others" 2016(2) CPJ 649 in this regard. We, thus, conclude that the onus is on the insurer to prove that insured was suffering from previous ailment and she fraudulently suppressed this material fact rendering the contract of insurance as void under Section 45 of the Insurance Act. This fact that insured Krishna Devi was suffering from previous ailment of Bronchitis Asthma remained unproved on the record by the OPs. Consequently, OPs cannot repudiate the contract of insurance on that premise. The submission of counsel for the complainant is that panelled doctor of the OPs duly examined the DLA, when she took the insurance policy. The panelled doctor found no disorder in her health regarding Bronchitis Asthma, when she was medically examined at time of taking the policy. This fact goes a long way in proving that panelled doctor of OPs examined the DLA, when she took the insurance policy and no such health disorder was detected in her at that time. This point also goes against OPs in this regard. The National Commission has also held in case titled as "Bajaj Allianz Life Insurance Co. Ltd and others versus Raj Kumar"
2014(3) CPJ 221 that authorized doctor of the insurance company had examined the insured, assessed fitness and after complete satisfaction, policy was issued. It cannot be presumed that insured First Appeal No.497 of 2015 12 was aware of multiple Meyloma/Blood Cancer and he deliberately concealed previous illness. This authority also strengthens the case of the complainant on the record that at the time of medical examination of insured by panelled doctor of OPs, there was no such disease in her.
9. Similarly, the point raised by OPs is that there was no proof of income of insured, wherefrom she was to pay the premium. Even OPs have not led any such evidence to prove it on the record that insured was not in a position to pay the premium. The onus lies on that party to prove the fact, which alleges it before the Forum. The allegation of OPs remained unproved on the record in this regard in our opinion for want of any tenable evidence on the record. The complainant's side has not admitted this fact on the file. OPs failed to lead any such evidence on the record to substantiate this point.
10. The OPs insured Krishna Devi and received premium during currency period of the policy. The complainant is nominee of the policy and is entitled to file the claim. The District Forum rightly held that OPs are deficient in service for repudiating the insurance claim. The complainant has also preferred first appeal no.497 of 2015 praying for enhancement of amount of compensation and interest on the claim amount. We find that the District Forum rightly exercised the discretion in this case appropriately in awarding the compensation and interest on the claim amount from the date of complaint and we do not find any ground to interfere with the same First Appeal No.497 of 2015 13 because exercise of discretion by District Forum cannot be said to be unreasonable and arbitrary one in this regard.
11. As a result of our above discussion, there is no merit in both appeals i.e the "First Appeal No.497 of 2015 and First Appeal No.694 of 2015" and both of them stand dismissed accordingly.
12. In First Appeal No.694 of 2015, the appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the respondent of this appeal being complainant by way of crossed cheque/demand draft after 45 days from receipt of certified copy of this order. Remaining amount, if any, shall be paid to complainant by the appellants of this appeal, as per order of District Forum within 45 days from receipt of certified copy of this order.
13. Arguments in these appeals were heard on 21.02.2017 and the orders were reserved. Now the orders be communicated to the parties.
14. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD K. GUPTA) MEMBER February 27, 2017.
MM