State Consumer Disputes Redressal Commission
L I C Of India vs Rajesh G Panwala on 24 August, 2021
Details DD MM YY
Date of Judgment 24 08 2021
Date of filling 12 03 2014
Duration 12 05 07
IN THE CONSUMER DISPUTES REDRESSAL
COMMISSION, GUJARAT STATE AT AHMEDABAD.
Court-2
APPEAL NO. 1001 of 2014
1. The Divisional Managershri,
LIC of India,
Divisional Office,4th Floor,
Jeeevan Prakash Building, Muglisara
Surat-395003
2. Branch Managershri
LIC of India,
Halar, Near General Post office,
Tal & Dist. Valsad-396001 ...Appellants
Vs.
Shri Rajesh Gikaldas Panwala
102,Ankit Apartment,
Nani Khatriwad,
Tal. & Dist.: Valsad. ...Respondent
Appearance: Mr. M.J. Shelat Ld. Advocate
For the appellants
Mr. A. N. Patel Ld. Advocate
For the respondent
Coram : Shri M.J.Mehta Judicial Member
Order by Shri M.J.Mehta, Judicial Member
1. Being aggrieved and dissatisfied with the judgment and order dated 30.12.2013 passed by the Learned District Forum, Valsad Complaint No.123 of 2011.
B.H.Gadhavi A-14-1001 Page 1 of 152. The appellant has preferred instant appeal on the grounds that the impugned order is arbitrary, perverse and is bad in law.
3. The brief facts of the case are as under: Ilaben Golakdas Panwala, sister of the complainant had taken policy of Rs: 3,00,000/- for her life namely Jeveen Aastha Policy from the Appellant/opponent Life Insurance Corporation of India(LIC).
Appellant/Opponent no. 1 is the Divisional office of the LIC at Surat while Appellant/opponent no.2 is the Branch Manager of Valsad Branch of the LIC. The policy was taken on 21.01.2009 and it was maturing on 21.01.2014.
The complainant is the nominee of the said policy. Ilaben died on 29.09.2010. on the death of the Ilaben complainant who is a nominee of the policy, had submitted claim with necessary documents but the Appellant/opponent LIC vide the letter dated 25.03.2011 repudiated the claim saying that from the case paper of Praver Hospital of Dr. Vatsa Patel it was found that Ilaben was suffering from T.B and Asthma since 5 years and that the said fact was not disclosed by Ilaben in her proposal form dated 29.01.2009.
Thus saying that Ilaben had suppressed material fact regarding her illness in the proposal form, the opponent LIC repudiated the claim. However, the opponent insurance company granted Rs. 47,898/- as ex-gratia B.H.Gadhavi A-14-1001 Page 2 of 15 payment. According to the Knowledge of complainant Ilaben was not suffering from T.B. and Asthma and that Ilaben had filled up correct and true particulars in her proposal form. The LIC has wrongly and illegally repudiated the claim and has thereby committed deficiency in service.
Hence, the complainant/respondent has filed this complaint, the complainant has claimed Rs. 3,00,000/- amount under the policy with all benefits, with 9% interest form 25.03.2011 from the appellants/opponents. The respondent/complainant has also claimed Rs. 10,000/- as compensation for the mental harassment. The respondent/complainant has also claimed cost of the complaint.
4. Heard both the sides Ld. Advocate Mr. M.J.Shelat on behalf of the appellant and Ld. Advocate Mr. A.N.Patel for the respondent side and also gone through the record produced, and judgment of the Trial Forum.
5. Ld. Advocate for the appellant Mr. M. J. Shelat has submitted before me that discharge summery on record by mark 11/1 by Dr. Vatsa Patel wherein it is stated that since long 5 years Diseased Life Assured (herein after referred to as:
"DLA") was suffering from TB and Asthma so it should be considered fact that it is well within the knowledge of the insured but is not disclosed before filling proposal form and thereby pre- existing disease case is considered by insurance B.H.Gadhavi A-14-1001 Page 3 of 15 company and repudiated the claim ex-gratia amount Rs. 47,898/- was allowed.
6. Ld. Advocate Mr. Shelat for the appellant travel me over learned Trial forum Judgement at Page No.12 Paras 5,6,7,8,9,10,11 wherein Learned Trial Forum has observed that only because of tick mark does not give the inference that it is well within the knowledge of assured and it is not disclosed fact about the pre-existing disease, it should not be considered it is part of duty of insurance company to establish by examining Doctor and by affidavit of the concerned Doctor and this duty is not complied by the insurance company and that's why Learned Trial Forum has partly allowed the complaint, ordered to be award Rs. 3,00,000/-with interest to the complainant.
7. Here Ld. Advocate Mr. Shelat has argued before me that once a ground of repudiation is pre- existing disease which does not disclosed by the complainant and that's why repudiation of the claim is there, the documents itself marks 3/4, 3/5 and 11/1 are produced by the complainant side thereby whichever the pleadings taken by the complainant is to be establish onus of proof casted on the part of the complainant and that proof about the no knowledge of the pre-existing disease to the insured is to be establish by positive evidence on record on the part of the complainant. Complainant fails to do so, so the repudiation of the claim by the insurance company is tenable in eye of law.
B.H.Gadhavi A-14-1001 Page 4 of 158. In support of this argument Ld. Advocate Mr. Shelat has drawn my attention to one citation AIR 2019 Supreme Court page No.2606 Life Insurance Corporation of India Vs. Manish Gupta Paras 6,11,12,13 and15 of the judgement the Hon'ble Supreme court has very well held that if the facts are well within the knowledge of the complainant than it should be establish by the complainant, and I gone through judgement cited by the Ld. Advocate for the appellant Mr.Shelat and I am bound by the judgement where it is held that when repudiation of the claim on the ground concealment of pre-existing illness policy filling within non-medical general (NMG) category where proposal form is not subject to medical examination it is sole obligation of proposal form to truthfully fill out by insured, breach of the policy condition by insured by considering the fact that he was suffering from heart disease from child hood while filling proposal form is ground for repudiation of a claim is in terms execution contain in point of policy so that repudiation is proper Consumer Protection Act Section 12.
9. Hon'ble Supreme Court is very well clear position that the onus was on the insured to provide material particulars of his health since no medical examination was mandate.
10. Thereby it is breach of the condition and insured has suppressed the material information pertaining to the facts that he had been suffering B.H.Gadhavi A-14-1001 Page 5 of 15 from pre-existing disease and repudiation of the claim is justified and here in the case.
11. Ld. Advocate for the respondent Mr. A. N. Patel has drawn my attention to Hospital Treatment (mark-3/4) and medical attendant's certificate (mark-3/5) wherein nowhere pre- existing disease history are disclosed and thereby it is not case of concealment of any material fact at the time of obtaining policy.
12. Ld. Advocate Mr. Shelat has drawn my attention at Mark 11/4 wherein it is discharge papers as Doctor Patel has very well disclosed with tick mark that DLA was suffering from TB and Asthma since long from 5 years so that repudiation of the claim is just and fair because there was no mandate of issuing policy than the submission by Ld. Advocate Mr. Patel cannot be accepted that this was a Jeevan Astha Policy and that's why there was no mandate of pre-medical examination before issuing policy in question and thereby it was duty of the DLA to disclosed everything.
13. Moreover, I would like to come to conclusion that if complainant desire to challenge the facts directed in the mark 11/4 that is discharge summery is to be challenged and is to be proved before the Forum that Doctor has wrongly narrated the facts regarding by way of tick mark that DLA was suffering from TB and Asthma since long 5 years.
B.H.Gadhavi A-14-1001 Page 6 of 1514. Thereby I would like to observe that complainant were fails to establish on record by adducing evidence or called upon any kind of evidence strictly prove that Dr. has wrongly narrated the observation of the pre-existing disease.
15. Here in the case policy obtain in 2009 and before that patient was suffering from TB and Asthma narrated by Dr. Vatsa Patel thereby it was taken as a case with the DLA and that facts were not disclosed at the time filing proposal form.
16. Thereby Trial Forum has made the fundamental error in allowing the claim for reimbursement of the medical expenses in the face of material on record that is mark 11/1 and failure to establish to mark 11/4 wrongly narrated the pre-existing disease.
17. I came to conclusion that repudiation of the claim by the insurance company was according to valid ground and thereby learned Trial Forum appreciation of the facts as narrated herein above is wrongly appreciated and observed by the Learned Trial Forum that it is duty of the insurance company to establish the fact is not tenable in eye of law.
18. Where the facts of pre-existing disease very well clear with the complainant side and thereby the decision cited by the Ld. Advocate Mr. Shelat B.H.Gadhavi A-14-1001 Page 7 of 15 leads to me interfere with the order of the Learned Trial Forum on this ground clearly.
19. Ld. Advocate Mr. Shelat has submitted before me that in III 2018 CPJ page no.283 NC In Pushpa A Patel V. HDFC Standard Life Insurance Co. Ltd. & Anr. wherein it is held that suppression of pre-existing disease claim repudiated that she had not been tested and DLA clearly not disclosed the fact that pre-existing disease that she was suffering from TB and Asthma as mark 11/1, even if complainant side feel that wrong information was recorded by the Dr. who prepare the discharge summery if it is so the complainant ought to have approach the hospital to correct the discharge summery and clarify that no such information had actually been given by the attendant at the time of admission of the patient in the hospital.
20. Thereby as per the above cited case, in the record no attempt to obtain such clarification was made from the hospital either before filing the consumer complaint or during the pendency of the complaint and thereby Hon'ble supreme court in such facts does not have any reason to disbelieve the history on record as given attendant of the deceased insured at the time of admission in the hospital and consequently, holds that he gave false information with respect to the state of his health which influenced the decision of the insurance company on the B.H.Gadhavi A-14-1001 Page 8 of 15 question as to where accept the proposal form to grant of insurance or not .
21. I am of the opinion the Ld. Trial Forum has not decided the case in a manner that the facts have challenged by the complainant that repudiation of the claim was not proper duly by the insurance company under the case of the history of pre-existing disease by the insurance company through discharge summery are not correct one it is not established by strict proof by the complainant and that's why considered read with this judgement cited by Ld. Advocate Mr. Shelat. I came to conclusion that complainant fails to perform the duty of onus of proof casted on the complainant as per the pleadings that repudiation of the claim was not duly adjudicated by the insurance company.
22. Further Ld. Advocate Mr. M.J.Shelat has drawn my attention to Judgement AIR 2020 Supreme Court 5210 in Bajaj Allianz Life Insurance Co. Ltd. and Ors Vs. Dalbir Kaur where in it is held that mainly it is important that whether the insured has concealed the material information before obtaining policy and at the time of filing the proposal forum, it will be fatal that here insured not disclosed about the facts which is well within the knowledge.
23. Further Ld. Advocate Mr. Shelat has drawn my attention to AIR 2019 S.C.at page no.2039 in Reliance Life Insurance Co. Ltd. and Anr. Vs. Rekhaben where in it is held material means B.H.Gadhavi A-14-1001 Page 9 of 15 representation or concealment would influence decision of the prudent insurer to undertake risk discloser was material to assessment of risk and thereby insurer is entitled to repudiate the claim of the policy and keeping in mind that contract on insurance are governed by principle of at cost good faith duty of mutual fair dealing requires all the parties to contract to be fair and open with each other to create and maintain trust between them.
24. Thereby insurance company expected true information from the insured and thereby duty of the full discloser requires on the part of the insured and no information substance or interest to conceal by the insurer is fatal for the insured and thereby the repudiation of the claim for non- discloser pre-existing disease here in the case are duly repudiation the claim by the insurance company is tenable in eye of law.
25. So not available of the contention of the documents Mark 11/4 is not acceptable and complainant side very well aware about the fact that claim is repudiated on this ground and that even if wrongly narrated by the Dr. Patel than also it must be attempted and duly corrected by the complainant side by approaching hospital to correct the facts that the part is not complied before filing the complaint and during the pendency of the complainant before the forum.
26. That's why no a burden of proof can be casted upon on the part of the insurance B.H.Gadhavi A-14-1001 Page 10 of 15 company as observed by the learned trial forum here in the case.
27. Further Ld. Advcoate Mr. Shelat has cited AIR 2008 S.C. at page 424 in P.J. Chacko and Anr. V. Chaiman, Life Insurance Corporation of India and Ors. wherein it is also held that deliberate wrong answer given by the insured having a contract of insurance policy may be repudiated further
28. Ld. Advocate Mr. Shelat has cited I (2014)CPJ Page no.409 (NC) Life Insurance Corporation of India & Ors. Vs. Nita Bhardwaj where in it is held that the suppression of previous disease and treatment violation of condition of the policy claim repudiated and it is immaterial whether a cause of death have any nexus or not which disease suffering and suppression by insured under such circumstances repudiation of the claim is justified.
29. Looking to the submission Ld. Advocate Mr. Amit patel for the complainant side that DLA was died due to Cardio Vascular Arrest and there is no nexuses with the TB and Asthma so this submission cannot be accepted keeping in mind the decision cited ld. advocate Mr. Shelat for the appellant on the issue that no nexus is necessary only non-discloser of the pre-existing disease or treatment taken is not narrated truly at the time of filing proposal form than the repudiation of the claim by the insurance company are justified.
B.H.Gadhavi A-14-1001 Page 11 of 1530. Ld. Advocate Mr. Amit Patel for the respondent submitted before me that looking to the judgement of the trial forum at Para nos. 5,6,7,9,10,11 where in trial forum has observed that considering the Hospital Treatment (mark- 3/4) and medical attendant's certificate (mark- 3/5) nowhere mention insured has given history about the pre-existing disease simply admission form is there so looking to the judgment at para 9 simple fever, cough, breathlessness for five days only and that's why history regarding pre- existing disease that is TB and Asthma nowhere disclosed in the admission form not any one have noted about the anything about the TB and Asthma to the DLA no case of TB and Asthma should be taken and accept so the repudiation of the claim should not be legal and valid.
31. Ld. Advocate Mr A.M.Patel relied upon the judgement Law Suit 2011(4) CPJ page no. 6 P. Vankat Naidu vs. Life Insurance Co. India. I would like to relied upon the judgment cited by the learned Advocate Mr.M.J.Shelat on AIR 2019 Supreme Court page No.2606 Life Insurance Corporation of India Vs. Manish Gupta looking to the judgment it is latest on delivering by the S.C , is prevail over the judgment is decided later on and thereby the different existing ground establish the fact that here in the case the history was not duly noted or observed by the discharge papers as per the mark 11/4.
32. It is the duty of the complainant to brought on record the bring all the facts before the B.H.Gadhavi A-14-1001 Page 12 of 15 consumer forum and thereby we have to relied upon latest decision delivered by Hon'ble supreme court as herein above, so this judgment cited by the Ld. Advocate Mr. A.N. Patel for respondent is not helpful to the complainant side.
33. Further Ld. Ad. Mr. Amit Patel relied upon the judgment Law Suit 2020(3) CPJ 254 Birla Sun Life Insurance Co. Ltd & Anr Vs. Narendra Pundlik Ramteke of National Commission and 2008(2) CPJ at page 59 National Insurance Co. Ltd. Vs. Swaraj Jain is not helpful to the complainant side as we have dealt with the judgement cited by the Ld. Ad. For the Appellant Mr.Shelat giving view judgement of the Supreme court clearly held that the duty to complainant to establish on record on failure of the duty the claim is duly repudiated by the insurance company is to be decided.
34. Thereby the looking to the both sides argument case on record and judgments as we have discussed herein above the Hon'ble supreme court has dealt with the issue that non discloser of the material before the filing proposal is fatal and repudiation of the claim by the insurance company is quite just and fair, and as we have discussed that medical discharge papers at mark 11/4 wherein discharge history narrated that DLA was suffering from TB and Asthma since long 5 years and that facts are well within the knowledge this is the reason of the insurance B.H.Gadhavi A-14-1001 Page 13 of 15 company for repudiation of the claim and complainant side have not attempted to re- correct about the pre-existing disease noted in the discharge history if it is wrongly narrated by the doctor nor attempts to bring truth on record or any documentary proof produced before the consumer forum even during the trial
35. Looking to the facts and considered both the sides argument and observation the rejection of the claim of the complainant on the ground that insured has suppressed the material facts regarding her past illness of TB and Asthma is just and proper and legal. So decision of the trial forum is required to be interfere with and thereby ultimately this appeal is hereby allowed and final order is passed as under.
b FINAL ORDER
i) Appeal No. 1001 of 2014 is Allowed.
ii) The judgment and order dated judgment and order dated 30.12.2013 passed by the Learned District Forum, Valsad in Complaint No.123 of 2011 is quashed and set aside.
i) The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
B.H.Gadhavi A-14-1001 Page 14 of 15iii) No order as to costs.
iv) Copy of the judgment be provided to the parties free of charge.
v) Registry is directed to send copy of this judgment to the parties. Registry is directed to send a copy this judgment to the District Commission Valsad through E-mail in PDF format for taking necessary action.
Pronounced in the open court on 24th August, 2021.
M.J.Mehta Judicial Member B.H.Gadhavi A-14-1001 Page 15 of 15