State Consumer Disputes Redressal Commission
Sandeep Kumar vs Max Elite on 24 February, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.111 of 2015
Date of Institution: 13.05.2015.
Date of Decision: 24.02.2016.
Sandeep Kumar S/o Sh. Bhumi Chand, R/o H.No.187, Phase-2,
Mohali, Punjab.
.....Complainant.
Versus
1. Max Elite, Institute of Orthopaedics & Joint Replacement, Max
Super Speciality Hospital, Near Civil Hospital, Phase-VI, Mohali,
Punjab-160 055 through Dr. Manuj Wadhwa, Director & Head.
2. Max Super Speciality Hospital, Near Civil Hospital, Phase-VI,
Mohali, Punjab-160 055, through its Director & Head.
....Opposite Parties
Consumer complaint under Section
17(1)(a)(i) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the complainant : Sh. Deepak Arora, Advocate
For the opposite parties : None
................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Sandeep Kumar has instituted this complaint under Section 17(1) (a) (i) of Consumer Protection Act 1986 (in short "the Act") against the opposite parties (to be referred as OPs) on the averments that
2. Upon notice, OP appeared and filed its written reply by raising preliminary objections that complaint is barred by time. Life assured Priti Arora died on 22.08.2007 and claim under the policy Consumer Complaint No.111 of 2015 2 was finally repudiated on 30.11.2010 and present complaint has been filed after more than two years from the date of repudiation of insurance claim. The complaint is alleged to be false and frivolous under Section 26 of the Act. It was further averred that Priti Arora life assured concealed the material facts about her previous ailment at the time of getting the insurance policy from the OP. Life assured was suffering from Ischemic heart disease, left ventricular failure as well as Pulmonary arterial hypertension since 15.11.2006, as per the report issued by the Nijjar Scan and Diagnostic Centre and further for the said treatment, life assured was admitted in Escorts Heart & Super Speciality Institute, Amritsar from 17.11.2006 to 20.11.2006 and was regularly getting the treatment before getting the insurance policy on 16.05.2007. The death of life assured was reported to Department of Forensic Medicine and Toxicology Amritsar and it was found that death of life assuredtook place due to heart failure as a result of dilated cardio myopathy. The hospital documents corroborates this fact that life assure was a heart patient, when she took the insurance policy. The non-disclosure of previous ailment was material fact for issuance of policy by the OP and it must have been disclosed by the insured. The OP could not have issued the policy, if it has the knowledge about the same. The Contract of Insurance is uberrima fides based on utmost good faith and insured is under obligation to make true and full disclosure of statement within his knowledge and the repudiation of the claim is justified for non-disclosure of material facts. The non-disclosure of 'Cardiac Consumer Complaint No.111 of 2015 3 Problem and Pulmonary arterial hypertension' by life assured Priti Arora for which she was getting treatment since November, 2006 was a significant material fact, which could have affected the decision of OP company in accepting the proposal form for insurance. The life assured gave negative answers to the questionnaire vide questions no.54(a) and 54(t) to the effect that whether she suffering from any heart attack, heart murmur and other heart/blood vessel disorder. She categorically replied it in negative. The OP averred that on account of concealment of ailment by life assured before taking the policy, the Contract of Insurance stood vitiated. Any contract which is vitiated by fraud or misrepresentation in obtaining the consent of aforesaid is voidable under Section 19 of the Contract Act. The proposer is supposed to disclose all material information while filling up the proposal form. On merits, the fact was admitted by the OP that Priti Arora obtained the insurance policy from OP on 16.05.2007. It was pleaded that she concealed her heart ailment while taking the insurance policy. She took the policy and died on 22.08.2007 after three months from taking the policy. It was further averred that nomination of complainant is matter of record. Being early claim, the matter was marked for investigation to Mack Insurance Auxiliary Services Private Limited by OP. During investigation, it was found that Priti Arora life assured was suffering from Ischemic heart disease, left ventricular failure as well as Pulmonary arterial hypertension, since 15.11.2006, as per the report issued by the Nijjar Scan and Diagnostic Centre and further for the Consumer Complaint No.111 of 2015 4 treatment of said heart ailment, life assured was remained admitted in Escorts Heart & Super Speciality Institute, Amritsar from 17.11.2006 to 20.11.2006. It was further pleaded that complainant has wrongly stated that claim was repudiated on 20.06.2011, just to cover the limitation. The OP repudiated the insurance claim on 30.11.2010. It was denied that life assured Priti Arora went to Nijjar Scan and Diagnostic Centre for normal checkup only. It was further pleaded that mother of deceased Priti Arora sent a letter to the answering OP disclosing that life assured Priti Arora died under mysterious circumstances and was ill treated by her husband and by her in-laws. She further disclosed that her daughter was getting treatment of heart disease and complainant and his family took the insurance policy of huge amount in her name with a planning by suppressing the heart ailment of her daughter. The answering OP prayed for the dismissal of the complaint.
3. The complainant tendered in evidence affidavits Ex.C-A & C-B alongwith documents Ex.C-1 to Ex.C-29 and closed the evidence. As against it OP, tendered in evidence affidavit and documents Ex.OP-1 to Ex.OP-10 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. Ex.C-A is the affidavit of complainant. Ex.C-1 is the copy of Endowment Plan (Regular) (Policy Schedule). It has proved that life assured Priti Arora was of 30 years of age at the time of taking the policy and she appointed Consumer Complaint No.111 of 2015 5 Rajiv Arora as nominee aged about 41 years. The date of commencement is recorded in it as 13th July 2007 and date of birth of life assured is recorded in it as 9th March 1977. The sum assured was of Rs.49,5000/- in above said policy. The critical illness rider was of Rs.10 lakhs and term benefit rider was of Rs.10,00000/- as per policy in question. Ex.C-2 is the death certificate of Priti Arora life assured proving that she died on 22.08.2007, which has been issued by Municipal Corporation Amritsar. Ex.C-3 is the copy of letter dated 20.06.2011 by OP with regard to reference to email dated 14th June 2011 regarding non-receipt of death claim. Ex.C-4 is the copy of letter dated 30.11.2010 addressed to complainant Rajiv Arora by OP regarding repudiation of the insurance claim on the ground that life assured Priti Arora submitted false answers to questions no.54(a) and 54(t). She specifically replied in negative under the query as to whether she underwent any treatment for chest pain, high blood pressure, heart attack, heart murmur, other heart/blood vessel disorder. She categorically gave the reply in negative. Ex.C-5 is the copy of intimation to Rajiv Arora by Life Insurance Corporation of India regarding sending cheque of Rs.2,28,200/- and Ex.C-6 is the copy of cheque dated 16.03.2012. Ex.C-7 is the copy of letter dated 26.07.2012 from ICICI Prudential Life Insurance to Rajiv Arora to the effect that they have honored the insurance claim in favour of complainant and sent the amount of Rs.1 lakh towards full and final settlement of the claim. Ex.C-8 is the document of ICICI Prudential Life Insurance Company. Ex.C-9 is the copy of letter dated Consumer Complaint No.111 of 2015 6 13.08.2010 addressed to Executive Claims of OP by Rajiv Arora and Ex.C-10 is the postal receipt thereof. Ex.C-11 is the copy of another letter dated 20.10.2010 from Rajiv Arora to OP regarding settlement of the insurance claim and Ex.C-12 is the copy of postal receipt thereof. Ex.C-13 is copy of another letter dated 15.03.2011 in this regard and Ex.C-14 is the copy of postal receipts thereof. Ex.C-15 is copy of another letter dated 09.11.2010 by Rajiv Arora to OP in this regard. Ex.C-16 is the copy of legal notice sent by complainant to OP on 14.06.2011 and Ex.C-17 are the postal receipts thereof. The complainant stated in legal notice Ex.C-16 that with reference to OP letter dated 30.11.2010 sent to him, vide their letter reference no.LT/21/03/11/308 dated 26.03.2011. The complainant stated that he noted the contents of letter dated 30.11.2010 with utter disappointment regarding repudiation of death claim of Priti Arora in arbitrary manner. Ex.C-18 is the copy of telephone bill in the name of Surinder Kumar Arora. Ex.C-19 is the copy of post mortem report of Priti Arora dated 23.08.2007. Ex.C-21 is the report of Department of Forensic Medicine & Toxicology, Govt. Medical College, Amritsar stating that after going through the histopathology report, it is found that cause of death in their opinion of Priti Arora was on account of heart failure, as a result of dilated cardiomyopathy, which is sufficient to cause of death in ordinary cause of nature. Ex.C-22 is the copy of letter dated 24.07.2010 from Rajiv Arora to OP regarding submitting the documents. Ex.C-23 is the copy of claim form B-Medical Attendant Certificate issued by Dr. S.C. Manchanda of Sir Ganga Consumer Complaint No.111 of 2015 7 Ram Hospital, New Delhi with regard to Priti Arora and she was diagnosed as dilated cardiomyopathy with severe heart failure. Ex.C- 24 is the receipt of premium of Rs.1,24,037/- issued by OP in the name of life assured Priti Arora. Ex.C-25 is the copy of Color Doppler Echocardiography issued by Nijjar Scan & Diagnostic Centre dated 15.11.2006 with regard to life assured Priti Arora. The conclusion of this report is dilated ventricles and atria. Severe degree of LV global hypokinesis and poor systolic functions with LVEF 26%. Diastolic dysfunction of LV - grade II. Well contractile RV antro-lateral wall. MR grade ¼. TR grade 1/3. Calculated RV and PAPSP 49mmHg (Pulmonary arterial hypertension. Structurally normal AV and semilunar valves. No intracardiac Echogenic mass. No evidence of mitral valve prolapse. Intact septa, Small posterior pericardial effusion. Ex.C-27 is the copy of echocardiogram of life assured issued by Sir Ganga Ram Hospital New Delhi. The final impression is recorded in it as "Global LV hypokinesis. Severely reduced LV systolic function. Good RV systolic function. LVEF-16%, Mild TR. PASP = 46mmHg. Mild PAH+Moderate MR. It has issued by Dr. S.C. Machanda of Sir Ganga Ram Hospital. The above referred documents have been relied upon by the complainant.
5. The OP relied upon affidavit of Atul Dutta, Authorized signatory of OP Ex.OP-A. Copy of repudiation letter dated 30.11.2010 Ex.OP-1 thereby the death insurance claim of Priti Arora submitted by her nominee/complainant was finally repudiated. Ex.OP-2 is the final report submitted by Mack Insurance Auxiliary Consumer Complaint No.111 of 2015 8 Services Pvt. Ltd. appointed by OP to look into the genuine claim of the complainant. The investigator found in his report that "the insured got a TMT (of the LA) done, but it appears that the claimant impersonated someone in place of his wife so as to yield a normal TMT. By no stretch of imagination a person having a pre-existing heart Ischemic disease with left venture failure can have a normal TMT". Ex.OP-3 is the discharge summary of life assured Priti Arora issued by Escorts Heart & Super Speciality Institute, Amritsar. It has proved that Priti Arora was admitted in the Escort Heart & Super Speciality Hospital on 17.11.2006 and she was discharged on 20.11.2006. The diagnosis was of dilated cardiomyopathy. Severe LV dysfunction (26%). PAH. Acute Gastritis. This discharge summary Ex.OP-3 has proved that in November 2006 Priti Arora was known case of dilated cardiomyopathy with severe LV dysfunction (26%). Her echocardiography was done outside on 15.11.2006, which revealed DCM with severe LV dysfunction (26%). She presented with complaint of cough and vomiting for four months associated with breathlessness during second pregnancy period in above said hospital. She was admitted in the hospital for stabilization and further management. Precordial auscultation and other systemic examination was unremarkable. The OP relied upon Ex.OP-3, the discharge summary to the effect that Priti Arora life assured was admitted for heart problem in Escort Heart & Super Speciality Hospital in the year 2006 and she was known case of DCM and acute gastritis. Ex.OP-4 is the copy of Echo Report dated Consumer Complaint No.111 of 2015 9 05.05.2007 conducted by Escorts Heart & Super Speciality Institute recording imaging 'Global biventricular dysfunction. EF by M-mode 18%. FS 8%. By vol 8-10%. No thrombus seen". Ex.OP-5 is the copy of letter sent by mother-in-law of complainant and mother of life assured Priti Arora. She brought it to the notice of OP that life assured suffered from heart problem and to encash the death of her daughter, the complainant took the insurance policy fraudulently by suppressing her pre-existing heart ailment. Ex.OP-6 is the report of Department of Forensic Medicine & Toxicology, Govt. Medical College, Amritsar. Ex.OP-7 is the copy of claim form A, submitted by complainant as nominee of Priti Arora life assured with OP. Ex.OP-8 is the copy of registered notice dated 14.06.2011 sent by the complainant. Ex.OP-10 is the letter of authority.
6. From perusal of above referred evidence on the record, we proceed to decide the controversy in this case between the parties. It was submitted by Sh. Munish Goel, Advocate counsel for the complainant that the proposal form was filled up by Kaushik Chhabra Sales Advisor of OP for Priti Arora life assured and hence, it cannot be said that Priti Arora filled up the proposal form in this case for taking the life insurance policy. Ex.OP-9 is the policy document. The counsel for the complainant strongly relied upon the statement of Kaushik Chabbra before this Commission on 15.04.2015 to the effect that he got one life insurance in favour of Preeti Arora. He stated that he has seen the proposal form on the record Ex.OP-9 and he has not filled up the proposal form Ex.OP-9. Consumer Complaint No.111 of 2015 10 He further stated that he has acquainted with the handwriting of Nishant Khosla and identified the handwriting of Nishant Khosla on Ex.OP-9, the proposal form. The complainant applied to this Forum that the proposal form was filled up by Kaushik Chhabra. Kaushik Chhabra denied this fact that he filled up the proposal form and stated that it is the writing of Nishant Khosla. The submission of Sh. Munish Goel counsel for the complainant is that once the proposal form Ex.OP-9 has not been filled up by Priti Arora, hence OP cannot take benefit of alleged wrong answers regarding heart ailment of Priti Arora life assured contained in proposal form. The complainant relied upon law laid down by the National Commission in case "Life Insurance Corporation of India Vs. Chaitanya Das, Advocate"Volume I 2013 CPJ-492, we find that the cited authority is distinguishable from the fact situation of the case. The policy was of 25 years and not 16 years. The fact situation of cited authority is that LIC did not examine agent/OP-3 before District Forum, nor did not lead any other evidence to show that proposal form was not filled up by OP-3. Herein, the complainant summoned Kaushik Chhabra, but he has not admitted this fact that he filled up the proposal and rather stated that it is the handwriting of one Nishant Khosla. It has appeared on the record that Priti Arora was graduate and income tax assessee. The proposal form Ex.OP-9 has been signed by Priti Arora. This fact is not disputed before us that the proposal form Ex.OP-9 is signed by Priti Arora in English. Priti Arora supplied her identity proof to OP also in this regard. The Apex Court has held in Consumer Complaint No.111 of 2015 11 "Grasim Industries Limited & another Vs. Agarwal Steel"
2010(1) SCC-83 that when document is signed by party. There is a presumption, unless there is proof of fraud, that he has read the document properly and understood. In this case Priti Arora was graduate and an income tax assessee and she signed the proposal form in English and there is no proof of any fraud established before us. Consequently, in view of law laid down by the Apex Court in this authority, we can presume that proposal form was properly understood by Priti Arora and then signed it. The National Commission also held in "Met Life India Insurance Co. Limited Vs. Pragnaben Rajesh Batunge" 2013(4)CPJ-225 that the deceased had studied upto 8th standard and he affixed his signature in English language. He must be aware of fact, being mentioned by the agent. It was bounden duty of deceased to raise objection and should not have allowed the agent to mention his incorrect educational qualification. Misstatement made by the deceased go to root of case and violate basic principle of 'utmost faith'. This authority is directly applicable to the fact situation of the case. Priti Arora life assured was a graduate and an income tax assessee and she was not supposed to have signed the proposal form without raising any objection, in case, it contained incorrect facts, even if it filled up by the agent on her behalf. We repel the submission of counsel for the complainant that Priti Arora was kept ignorance and wrong particulars were filled up by the agent in the proposal form. Consumer Complaint No.111 of 2015 12
7. Once, we have come to this conclusion that Priti Arora understood the contents of proposal form Ex.OP-9 and then signed it. She gave the answers in negative to the questions, as to whether she suffered from any heart ailment or not. The policy in question was taken by her on 16.05.2007 with date of commencement 13th July, 2007. She died on 22.08.2007, vide death certificate Ex.C-2. The OP strongly relied upon Post Mortem Report Ex.C-19 of life assured Priti Arora and the report of Department of Forensic Medicine and Toxicology Amritsar to the effect that death took place due to heart failure, as a result of dilated cardiomyopathy, which is sufficient to cause of death in ordinary cause of nature. The complainant also tendered in evidence the report of two dimension echocardiography of Nijjar Scan & Diagnostic Centre Ex.C-26. This report cannot be said to be erroneous one. It has proved that complainant was suffering from heart ailment. The OP strongly relied upon the discharge summary issued by Escorts Heart & Super Speciality Institute, Amritsar proving that Priti Arora was admitted in the above hospital on 17.11.2006 and was discharged on 20.11.2006 and she was diagnosed as a case of dilated cardiomyopathy with severe LV dysfunction (26%). PAH. Acute Gastritis. She presented with complaint of cough and vomiting for four months associated with breathlessness during second pregnancy period. We cannot discard the discharge summary of Priti Arora life assured issued by Escorts Heart & Super Speciality Institute, Amritsar proving that she was admitted for her heart Consumer Complaint No.111 of 2015 13 ailment on 17.11.2006, before taking the policy and she was a known case of dilated cardiomyopathy with severe LV dysfunction (26%) in the year 2006. Her cause of death is to be proved as a result of dilated cardiomyopathy being heart failure in her young age. The counsel for the complainant could not rebut the discharge summary of Priti Arora issued by Escorts Heart & Super Speciality Institute, Amritsar on the record. Even the investigator of Mack Insurance Auxiliary Services Private Limited noticed in his report Ex.OP-2 that the insurer got a TMT (of the LA) done, but it appears that the claimant impersonated someone in place of his wife Priti Arora so as to yield a normal TMT. The submission of counsel for the complainant that tests of life assured were normal, when she was medically examined at the time of taking the policy. Pail into in significance by the investigator report Ex.OP-2 that a lady who suffered heart problem to that extent is not supposed to have given normal TMT test at all. The Nijjar Scan & Diagnostic Centre's report dated 15.11.2006 coupled with discharge summary of Escorts Heart & Super Speciality Institute, Amritsar Ex.OP-3, Echo report Ex.OP-4 and the report of Sir Ganga Ram Hospital, New Delhi coupled with report of investigator Ex.OP-2, we have reached this conclusion that Priti Arora life assured was already suffering from severe heart ailment in the year 2006. She was aware of heart ailment, because she remained admitted in Escorts Heart & Super Speciality Institute, Amritsar for treatment of her heart ailment. This finding is, thus, returned by us on the basis of above referred Consumer Complaint No.111 of 2015 14 evidence that life assured wife of the complainant was already proved to be case of heart ailment in the year 2006. She took the policy in the year 2007 and gave false answers in questionnaire no.54(a) and 54(t) in the proposal form. The Contract of Insurance stands vitiated on account of concealment of material facts fraudulently by the life assured. The National Commission has held in "Monica Jain Vs. Life Insurance Corporation of India"
2015(4)CPJ-16 that failure to disclose all material facts relating to health of assured. It was held that Insurance Company was justified in repudiating the claim preferred by the complainant. We also find support from the authority of National Commission titled as "Jagdeep Arora Vs. Life Insurance Corporation of India & others" 2015(3) CPJ-341 wherein, it has been held that if any such information about the medical condition of a person which could influence the mind of a prudent insurer is not disclosed to him, it amounts to suppression of material facts and the insurer is very much within its rights to repudiate the claim. Reference may also be made on law laid down in "M.Obaidur Rahman Vs. Nationa Insurance Co. Limited" 2015(3) CPJ-474 by the National Commission that suppression of pre-existing disease renders the contract of insurance void and repudiation is justified. We also relied upon law laid down by the National Commission in case "Satyavati Sharma Vs. Life Insurance Corporation" 2013(3) CPJ-654 that insurance is a contract of trust and it was obligatory on the part of assured to disclose previous disease, treatment etc. Repudiation in Consumer Complaint No.111 of 2015 15 case of concealment held justified on the basis of law laid down by the Apex Court in "Satwant Kaur Sandhu Vs. New India Assurance Company Limited" 2009(4) CPJ-8. We, thus, hold that on account of suppression of material fact of previous heart ailment and treatment by life assured Priti Arora, the Contract of Insurance has rightly been repudiated by the OP.
8. It was further submitted by counsel for the OP that complaint is barred by time, but on this point the submission of counsel for the complainant is that complainant gave legal notice to OP Ex.C-16 on 14.06.2011 and limitation would accrue thereafter only. Ex.C-17 is postal receipt thereof. We do not find any force in the submission of the complainant. The complainant himself admitted in legal notice Ex.C-16 regarding receipt of repudiation letter dated 30.11.2010 from OP. It is, thus, evident that repudiation of contract came to the knowledge of the complainant in the year 2010. Subsequent issuance of legal notice and correspondence sent by the complainant would not extend the period of limitation. On this point, we find support in law laid down in "Panipat Thermal Power Station HPGCL Vs. New India Assurance Co. Limited" 2013(1) CPJ-114 by the National Commission that after repudiating the claim or making some payment as final payment subsequent correspondence between the parties does not extend the period of limitation. The National Commission has held in "Sehdev Singh Vs. New India Assurance Co. Limited" 2012(2) CPJ-91 that it is the duty of Consumer Fora to take notice of Section 24-A and go into the Consumer Complaint No.111 of 2015 16 fact if complaint is barred by time. Consumer Fora if decides a time- barred complaint on merits, it would be committing an illegality. Even from legal notice of complainant Ex.C-16 coupled with Ex.C-4, the repudiation letter, we hold that complainant was aware of the repudiation of Contract of Insurance after 30.11.2010 and we find corroboration even from legal notice Ex.C-16 to this fact. The complainant filed the complaint on 19.06.2013 before this Commission. The complainant has not filed any application for condonation of delay in this case. We reject the submission of counsel for complainant that limitation would commence from 14.06.2011, when complainant issued legal notice to OP. We hold that limitation to file the complaint would commence after repudiation letter Ex.C-4 dated 30.11.2010 conveyed to complainant and hence the complaint, which was instituted on 19.06.2013 by the complainant is not within two years from the date of commencement of cause of action. The complaint is, thus, held to be barred by time.
9. In view of our above referred discussions, we have not found any deficiency in service or unfair trade practice on the part of OP in this case. The OP is justified in repudiating the Contract of Insurance on account of concealment of material fact of previous heart ailment and treatment therefor by life assured Priti Arora, while taking the insurance policy in this case. The complaint is hereby ordered to be dismissed.
Consumer Complaint No.111 of 2015 17
10. Arguments in this complaint were heard on 03.02.2016 and the order was reserved. Now the order be communicated to the parties. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S. GURAM) MEMBER February 09, 2016.
(MM)