State Consumer Disputes Redressal Commission
Smt.Usha Mangal vs Aviva Lic on 2 July, 2019
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 41 OF 2011 FILED ON 28.12.2011 DECIDED ON 02.07.2019 SMT. USHA MANGAL, W/O LATE SHRI ASHWANI KUMAR MANGAL, R/O A-160, INDRAPURI, RAISEN ROAD, BHOPAL (M.P.). ... COMPLAINANT Versus 1. AVIVA LIFE INSURANCE COMPANY INDIA LIMITED, THROUGH MANAGING DIRECTOR, OFFICE-AVIVA TOWER, SECTOR ROAD, OPPOSITE DLF GOLF COURSE, DLF PHASE-V, SECTOR-43 GURGAON, HARYANA-122 003 2. THE BRANCH MANAGER, AVIVA LIFE INSURANCE CO.INDIA LTD., 238 A, SHASHWAT TOWER, IIIRD FLOOR, M.P.NAGAR, ZONE-I, BHOPAL-462 011. .... OPPOSITE PARTIES. BEFORE : HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR : PRESIDENT HON'BLE DR. (MRS) MONIKA MALIK : MEMBER
COUNSEL FOR PARTIES:
Shri A. K. Roy, learned counsel for the complainant.
Shri Alankar Soni, learned counsel for the opposite parties.
O R D E R (Passed On 02.07.2019) The following order of the Commission was delivered by Dr. (Mrs) Monika Malik:
This is a complaint under Section 17 (1) (a) (i) of the Consumer Protection Act, 1986 filed by the complainant, alleging deficiency in service on part of the opposite parties-insurance company for repudiating death claim of her deceased insured husband, claiming sum assured under the said policy. The complainant has sought relief in the form of claim of Rs.63,66,650/- along with compensation of Rs.12,00,000/- therefore, a sum total of Rs.75,66,650/- from the opposite parties, accompanied with any other relief, which the Commission may deem fit.
2. The case of the complainant is such that the complainant's deceased husband (hereinafter referred to as 'insured') had obtained an 'Aviva Life Shield Platinum Policy' vide policy no. 3069169 for a sum of Rs.63,66,650/- on 31.03.2011 after paying premium of Rs.61,938/-. The insured had gone through all the relevant medical checkup as per criteria for old age policy, as mentioned by the Insurance Company at EARL Diagnostic. The entire medical checkup, including -2- echo was found to be normal and subsequently the insurance company issued the policy to the insured. On 10.04.2011, the insured developed Acute Ischemic Stroke on right facial side and was therefore admitted in the Bombay Hospital, Indore. He was discharged when his condition was stable on 29.04.2011. After discharge from Bombay Hospital, Indore, the insured was admitted in Akshaya Hospital, Bhopal on 29.04.2011 and he died due to Cardio Respiratory Arrest on 30.04.2011. Consequently, the complainant, being wife of the insured filed insurance claim along with requisite medical documents with the opposite parties. However, the opposite party-insurance company repudiated the insurance claim of the insured, vide letter dated 29.06.2011, on the basis of Uberrima fidae, whereas the insured had never hidden any pre-existing disease before issuance of the aforesaid insurance policy. The complainant alleged that the opposite parties had approved the claim of the insured for another life insurance policy on earlier occasion and had issued a cheque no. 525213 for Rs.25,00,000/- on 07.07.2011. The complainant alleged that the aforesaid act of the opposite parties of denying the insurance claim of the insured, amounts to deficiency in service on part of the opposite parties. Therefore the complainant filed the aforesaid complaint, seeking relief.
3. The opposite parties-insurance company resisted the complaint stating that the insurance being contract of Uberrima fidae (utmost good faith), the policy holder is duti-bound to reveal all relevant facts to the insurance company while filling up the proposal form in order to obtain insurance policy cover so that the opposite parties could determine the policy holder's eligibility for availing the insurance. It is submitted that there is deliberate suppression of relevant facts on part of the insured and therefore the opposite party was constrained to decline the claim of the complainant, which was just and proper and therefore the complaint merits dismissal at the threshold on this ground alone. It is submitted that in the documents procured by the opposite parties during the course of claim evaluation, it was revealed that the life insured had a known history of Hypertension and he had also been taking medication for several other ailments including high Cholesterol, Asthma, Obesity and Calcaneal spur. None of these facts were disclosed by him in the proposal form or in Medical Examiner's Report, which amounts to serious non-disclosure of material facts and violation of terms and conditions of the insurance policy, which compelled the opposite parties to repudiate the claim. It is further submitted that the proposal form clearly states that in case of suppression of material facts, the opposite parties have right to repudiate the claim against the policy. Deceased-insured had also signed a declaration to this effect. It is submitted that the complainant cannot claim any sum assured as the insurance policy was obtained by the insured by suppression of material facts and therefore the contract of insurance being void is not tenable in the eyes of law.
-3-4. Heard. Perused the record.
5. Learned counsel for complainant argued that the opposite party-insurance company has unlawfully repudiated the insurance claim of her deceased-insured husband, when a claim under another insurance policy has been considered and allowed by them. He argued that the deceased insured accidently fell ill and became unconscious. Later on, he was admitted in the hospital and was discharged after his condition was stable. He further argued that the deceased- insured subsequently died due to Cardiac Respiratory Arrest which was a new development. As alleged by the opposite party, the insured had no history of hypertension/high blood pressure, since the medical papers of the treatment received by him in the hospitals show his BP in the normal range. The ground for repudiation taken by the opposite party-insurance company is not sustainable. Learned counsel further submitted that the medical opinion was called by the Commission regarding medication taken by the insured. Opinion favours the submission of the complainant. He argued that the fact that the insured was not taking any medication for hypertension/high blood pressure has been confirmed by the certificate issued by Dr. Indermal Jain, Physician and Cardiologist.
6. Learned counsel for the opposite party-insurance company drew our attention to the treatment sheets dating back to the year 2008 upto the year 2010. He argued that the insured was taking medications to control hypertension since 2008. Medical papers have given clear mention that the insured was taking medicines to control high blood pressure. In the Discharge Summary of the Bombay Hospital, Indore, it is mentioned that the insured had history of hypertension. He further argued that the treatment sheets of Bombay Hospital, Indore also indicate that the insured was a known case of Hypertension. Learned counsel further pointed out that the medical opinion received, subsequent to the direction issued by this Commission, does not clarify the matter with regard to the insured being suffering from hypertension. The report is vague and is not to be relied upon. The insured in addition to hypertension was also taking medication for Asthma, kidney disorders and also for obesity. The insured had suppressed the material information in this regard while filling up the proposal form in order to obtain insurance policy cover. The repudiation by the opposite party is justified, which is done in accordance with terms and conditions of the insurance policy. He argued to clarify that a sum of Rs.25,00,000/- regarding earlier insurance policy of the deceased-insured has already been given to the complainant who is his nominee. The aforesaid insurance claim is pertaining to the insurance policy which was obtained by the insured in the year 2007, whereas he developed hypertension and started taking medication from 2008 onwards i.e. after taking the earlier policy and hence no suppression of material fact could be attributed to him at the time of taking earlier policy. This fact further goes to show the bonafide of the opposite party. Learned counsel for -4- opposite parties placed reliance on the decisions of the Supreme Court in Satwant Kaur Sandhu Vs New India Assurance Company Limited AIR 2002 SC 2776, Life Insurance Corporation of India & Ors. Vs Asha Goel & Anr. 2001 ACJ 806, P.C.Chacko & Anr Vs Chairman, Life Insurance Corporation of India Ltd. AIR 2008 SC 424 and the decision of the National Commission in Life Insurance Corporation of India Vs Shri Ghuman Singh (Revision Petition No. 306 OF 2004) .
7. As we carefully peruse the evidence placed before us, we observe that Discharge Summary of Bombay Hospital, Indore (Page 37) shows that the insured had history of (h/o) Hypertension. In the treatment sheet dated 10.04.2011, it is mentioned that the insured Ashwani Kumar Mangal is K/C/O HTN, on Rx Dilzem. Death certificate issued by Akshaya Hospital (page 31) also reveals that the insured had history of hypertension.
8. The opposite party vide their repudiation letter dated 28.06.2011 (Annexure R-8) has repudiated the insurance claim of the deceased-insured on the basis that he was suffering from Hypertension since the year 2008. It is stated that the fact in respect of pre-existing medical ailment was not disclosed in the proposal form, wherein the deceased-insured had not properly declared regarding his health condition, in the 'Health & Activity Section'. The claim of the deceased-insured was repudiated on the basis of serious non-disclosure of material facts, which is violation of terms and conditions of the insurance policy.
9. We observe that the deceased-insured, Shri Ashwani Kumar Mangal had answered to the following queries in negative as asked from him in the proposal form under Clause 6.2-'Health & Activity Section' which is reproduced hereunder:
6.2 Health and Activity Section If you answer YES to questions A, B, C(ii), D(ii), E, F, G(ii) & G(iii) please provide us with further background information in the table provided below. The information given will allow us to come to a decision without having to delay your proposal for further queries.
Are you currently receiving any medical treatment or are you availing medical or surgical consultation, test or investigation? (You need not disclose matters relating to uncomplicated pregnancy, common colds, influenza, hay fever or any minor ailment requiring a single consultation.
NO Have you ever had any medical or surgical treatment, including investigations, tests, scans or X-Ray for any of the following illnesses or medical conditions:
High blood pressure, angina, heart attack, stroke or any other disorder of heart or circulation?
NO ii. Any form of cancer, tumor or growth?
NO iii. Disorder of skin or lymph glands?
NO iv. Diabetes, Kidney or liver problem?
NO The insured had also replied in negative to the relevant queries, raised while answering to the personal history in the Medical Examiner's Report (Annexure R-2), as well.-5-
10. Medical papers which were procured by the opposite party annexed as R-7, date back to the year 2008. In these medical papers, started from the year 2008 to 2010, there is mention regarding insured taking certain medicines, which are described as follows:
(1) Tab Dilzem: It is a medicine used in the treatment of high blood pressure (hypertension), heart related chest pain (Angina) and arrhythmia.
(2) Tab Dytor: a treatment of resistant edema, associated with secondary hyperaldosteronism, resistant hypertension, nephrotic syndrome & chronic cardiac failure.
(3) Tab Senasof: administered for curing constipation in cardiac and diabetic patients.
(4) Tab Fruselac: treatment of resistant edema associated with secondary hyperaldosteronism, resistant hypertension & cardiac failure.
(5) Tab Torsid: a diuretic used to control high blood pressure and edema. (6) Tab Atorfit: reduces the levels of bad cholesterol & triglycerides, in the blood. (7) Tablet Durastat: lowers the triglycerides and raises good cholesterol HDL levels in the body. (8) Tablet Metlor: which is used to reduce high blood pressure.
In addition to the above, insured was also suffering from calcaneal spur and was receiving treatment for bony growth, developed around the heel bone. The insured was also reported to be suffering from dyslipidemia.
11. It is evident from the aforesaid discussion that the insured was having hypertension, dyslipidemia, obesity along with other disorders and ailments and was receiving treatment for the same from the year 2008 onwards. The certificate issued by Dr. Indermal Jain is not supported by his affidavit. This certificate is not based on the correct appreciation of relevant medical papers available on record and therefore deserves not to be considered. The medical opinion was sought by this Commission from Gandhi Medical College, Bhopal. Directions were issued to frame a panel of doctors, to examine the prescriptions & documents related to the case and to give a detailed report of the medicines which were being taken by the insured. We observe that though there is a reference of prescriptions from the year 2008 to 2010, with specific mention of medicines being taken by the insured, but there is no clear finding that whether or not he was taking medications to control high blood pressure and high cholesterol and therefore this report does not prove to be worthwhile in the matter. Moreover, the report was required from a Committee consisting a panel of doctors but the report appears to be signed only by Professor and Head, Department of Medicine. It is pertinent to mention that the constituted panel does not include name of the Cardiologist. This report is indeterminate and does not straighten out the matter.
-6-12. The submission of the counsel for the complainant that the insured accidentally fell ill and the complications developed later on is not acceptable, since the pleadings of the complainant specifically suggest that the insured developed Acute Ischemic Stroke on 10.04.2011.
13. The insured died on 30.04.2011. He filled up the proposal form on 30.03.2011 to obtain the aforesaid policy cover. He died within a month of issuance of insurance policy. In the wake of the foregoing discussion, it is established beyond doubt that the insured had concealed the material information regarding his health in the proposal form. Therefore, the insurance company cannot be held deficient in service in disallowing his claim.
14. The Hon'ble Supreme Court in Satwant Kaur Sandhu Vs New India Assurance Company Limited 2009 CTJ 956 (Supreme Court) (CP) has observed in Paragraph 12:
"Thus it needs little emphasis is that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment."
15. The Hon'ble Supreme Court further in para 19 has observed:
In this regard it would be apposite to make reference to Regulation 2(1)(d) of the Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002, which explains the meaning of term "material". The Regulation reads thus:
"2 Definitions--In these regulations, unless the context otherwise requires--
xxx xxx xxx xxx xxx xxx xxx xxx xxx
"Proposal Form" means a form to be filled in by the proposer for insurance for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.
Explanation:- "Material" for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer."
Thus the regulation also defines the word "material" to mean and include all "important", "essential" and "relevant" information in the context of guiding the insurer to decide whether to undertake the risk or not.
Therefore, the upshot of entire discussion is that in a contract of insurance any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept -7- the risk is a 'material fact'. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering to the questions in the proposal form.
16. It is settled position that the insured was under obligation to fill up the details correctly in the proposal form. Either proposal for insurance would have been rejected or insured would have been subjected to further investigations before providing the policy cover. Law is well settled on this matter.
17. Therefore, in wake of the above discussion, we are of a considered view that the complainant does not deserve the sum assured stipulated under the aforesaid insurance policy, issued in the name of her late husband/insured.
18. In the result, the complaint being devoid of merits is dismissed. No order as to costs.
(JUSTICE SHANTANU S. KEMKAR) (DR. MONIKA MALIK) PRESIDENT MEMBER