State Consumer Disputes Redressal Commission
Postallife Insurance vs Mrs. Vidhyawati on 29 April, 2019
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:29.04.2019 First Appeal No.690/2011 (Arising out of the order dated 22.07.2011 passed in Complainant Case No.433/2010 by the District Consumer Disputes Redressal Forum (East), New Delhi) The Assistant Divisional Manager, (Postal Life Insurance) Delhi Circle, Maghdoot Bhawan, 1st Floor, Link Road, New Delhi- 110001 Sh. Nanak Chand, Development Officer (PLI), O/o The Chief Postmaster General, Delhi Circle, Maghdoot Bhawan. ...Appellants Versus Mrs. Vidhyawati, W/o. Late Sh. Ashok Kumar, R/o. A- 4/435, Harijan Basti, East of Gokalpuri, Delhi- 110094 ....Respondent CORAM Justice Veena Birbal, President Ms. Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short 'the Act') wherein challenge is made to order dated 22.07.2011 passed by the Consumer Disputes Redressal Forum (East), Delhi (in short, the "District Forum") in Complaint Case No. 433/2010, whereby the aforesaid complaint has been allowed and appellant no.1/OP-1 is directed to pay the insurance cum death claim of Rs. 1 lac to the respondent/complainant along with Rs.5,000/- towards compensation and Rs.2000/- towards cost of litigation.
Briefly the facts are that a complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before District Forum stating therein that her husband, Late. Sh. Ashok Kumar who was a constable in the Delhi Police had availed the facility of Postal Life Insurance from appellant no.1/OP-1 arranged through Development Officer, Postal Life Insurance i.e. appellant no.2/OP-2. The Policy was issued on 06.07.2007 and its maturity date was 06.07.2017 and sum assured was Rs. 1, 00,000/-. It was stated that husband of respondent/complainant was physically fit and did not suffer from any ailment at the time of taking the policy. On 03.03.2008, her husband passed away. The respondent/complainant had intimated death of her husband to appellant-1/OP-1 through appellant-2/OP-2 and also lodged her claim. The same was rejected vide letter dated 17.12.2008 on the ground that her husband i.e. insured had concealed his ailment at the time of taking the policy. Aggrieved by the deficiency in service and unfair trade practise on part of the appellant/OP, a complaint was filed wherein prayer was made for award of assured amount of Rs. 1,00,000/- along with compensation of Rs. 1,00,000/- for causing mental agony and litigation charges of Rs. 31,000/-.
Appellants/OPs had contested the complaint by filing written statement wherein it was admitted that respondent's/complainant's husband had taken the Postal Life Insurance Policy for Rs. 1,00,000/- on 06.07.2007. It was also admitted that husband of respondent/complainant died on 03.03.2008 and thereupon the respondent/complainant being the nominee preferred her claim. It was stated that since claim was premature death claim (within 3 years of acceptance of policy), the details of leave availed by the insured were called from his employer. It was further stated that while going through the leave record it was observed that the insured had remained on medical leave. The report of the doctor who last attended the insured revealed that he had died of "HYPOXIC ENCEPHALOPATHY" and was suffering from said disease for the past 12 years. It is stated that the insured had concealed the fact of his illness while filling up the proposal form for taking the Policy as such claim was rightly rejected as per the terms and conditions of Policy.
Rejoinder was filed by the respondent/complainant refuting the allegations made in the written statement. Both parties had filed evidence by way of affidavits.
After hearing the parties, Ld. District Forum held that repudiation of claim was arbitrary and could not be sustained. Accordingly Ld. District Forum directed appellant/OP to pay the policy amount and also awarded compensation as has been stated above.
Aggrieved with the aforesaid order, present appeal is filed by appellants/OPs.
We have heard counsel for the parties and perused the material on record.
Ld. Counsel for appellants/OPs has contended that the District Forum has failed to consider that insured was duty bound to disclose in the proposal form about all the ailments/diseases from which he was suffering. It is contended that insured was not keeping well and had remained on medical leave and availed earned leave also. It is contended that report of the Doctor who last attended the insured shows that he died of "HYPOXIC ENCEPHALOPATHY" and was suffering from said disease for the past 12 years. It is contended that insured had deliberately concealed from appellants/OPs his ailment. It is further contended that the medical certificate on the basis of which insured had applied for the policy was procured and manipulated one. It is contended that the claim of respondent/complainant is rightly rejected.
On the other hand, the respondent/complainant has argued that Ld. District Forum while passing the impugned order has considered all the material on record. It is contended that there is no illegality in the impugned order and appeal is liable to be rejected.
There is no dispute that the insured had taken a Postal Insurance Policy from appellant-1/OP-1 on 6.7.07 wherein sum assured was Rs.1 lac. It is also not disputed that insured had died on 3.3.08. As per stand of appellant-1/OP-1 investigation carried out about cause of death of insured shows that prior to taking the policy insured was suffering from "HYPOXIC ENCEPHALOPATHY" for past 12 years and that while filling up the proposal form insured had concealed facts of his ailment. To prove the same, appellant/OP has relied upon Death Certificate/Medical Attendant Certificate issued by Dr. R.K. Dudeja of RML Hospital dated 14.11.08 to appellant/OP to wherein it is stated that the insured had died on 3.3.08 at RML Hospital. The primary cause of death is "Hypoxic Encephalopathy" and secondary cause of death is Chronic Obstructive Pulmonary Disease (COPD) C Pneumonia. It is also stated in the said certificate that insured was suffering from the said disease for the past 12 years. It is nowhere mentioned in the aforesaid certificate as on what basis the aforesaid doctor has stated that the insured was suffering from the aforesaid ailment for the past 12 years. It is not the case of appellant-1/OP-1 that the insured was under the treatment of aforesaid doctor. No past record of treatment of insured is also filed. Nothing is mentioned in the aforesaid certificate as on what basis it has been stated that the insured had been suffering from "Hypoxic Encephalopathy/COPD" for the past 12 years. No certificate from treating doctor is also filed. From the aforesaid certificate it cannot be said that prior to taking policy insured had knowledge of alleged ailment.
During the pendency of appeal vide letter dated 3.11.16, appellant-1/OP-1 has filed a certificate dated (not legible) of the year 2016 of Dr. R.K. Dudeja, Consultant(Medicine), RML Hospital, New Delhi. The aforesaid document was not filed before District Forum nor any application is filed before us for filing additional document. The aforesaid letter reads as under:
"Mr. Ashok Kumar was suffering from Chronic Obstructive Pulmonary Disease (COPD) for the last 12 years and this is mentioned in the Death Certificate as secondary cause.
However, the patient's immediate cause of death was oxygen deficiency to the brain mentioned as HYPOXIC ENCEPHALOPATHY. This was because of exacerbation (or increase) in the severty of Primary Disease (COPD)."
12. The aforesaid letter is only a clarification of Death Certificate. The same is no help to appellant-1/OP-1 as no evidence of previous ailment, as is alleged, is filed or discussed in the aforesaid letter. There is no evidence on record to show as on what basis it is stated that deceased was suffering from "HYPOXIC ENCEPHALOPATHY" for the past 12 years. No evidence is filed that deceased had taken treatment of aforesaid alleged disease at any time prior to taking policy. Burden is on the appellant/OP to prove that there was suppression of material facts on the part of assured. Appellant-1/OP-1 has failed to discharge the said burden.
Appellant-1/OP-1 has also relied upon leave record of the insured. The leave record is reproduced and discussed in the impugned order. The same is as under:
"i. 5 days Ctd. Leave w.e.f. 31.08.06 & 16 days EL w.e.f. 5.9.06.
ii. 5 days Ctd. Leave w.e.f. 25.10.06.
iii. 15 days Ctd. Leave w.e.f. 09.01.06 & 6 days EL w.e.f. 24.01.06.
iv. 10 days HPL w.e.f. 16.10.04.
v. 14 days EL Leave w.e.f. 16.03.05"
We have also perused the leave record of the insured which is on record. Considering the same, it cannot be said that the insured had given wrong declaration about his health. Leave availed are not substantial. The leave availed is also of different nature. Further the policy is taken in July 2007. Leave record from January 2007 to June 2007 is also not filed. The leave availed is also not substantial. It cannot said from the leave record that the insured had given wrong declaration about his health as is alleged.
15. From the evidence produced, it cannot be said that the insured had concealed about alleged illness in the proposal form at the time of taking the policy. It has also come on record that while taking the policy, the insured was medically examined and doctor after examining has given certificate that the insured was medically fit and had recommended for the acceptance of proposal.
16. In view of above discussion, we find no illegality or infirmity in the impugned order. The appeal stands dismissed.
17. A copy of this order as per statutory requirements be sent to the parties free of charge as well as to the concerned District Forum. The record of the District Forum be also sent back forthwith. Thereafter the file be consigned to record room.
(Justice Veena Birbal) PRESIDENT (Salma Noor) MEMBER