State Consumer Disputes Redressal Commission
Smt. P. Savitri vs Divisional Manager & Anr. on 23 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/555
Instituted on : 24.09.2013
Smt. P. Savitri, S/o Late Shri P. Sudhakar Rao,
Aged about 38 years, Caste : Rao,
R/o : Plot No.43, Devvati Chandrakar Near Balaji
Hospital Lane, Dubey Colony,
Raipur (C.G.) ... Appellant.
Vs.
1. Divisional Manager,
Life Insurance Corporation of India,
Divisional Office, Bilaspur,
Post and Tehsil Bilaspur, District Bilaspur (C.G.)
2. Branch Manager,
Life Insurance Corporation of India,
Branch Office - Naila, Dist. Janjgir - Champa (C.G.) ... Respondents.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Miss Meena Tiwari, Advocate for appellant.
Shri D. Dutta, Advocate for respondents.
ORDER
Dated : 23/05/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 30.08.2013, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum"), in Complaint Case No.135/2012. By the impugned order, the learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. The facts of the complaint are : that deceased the appellant (complainant) is widow of P. Sudhakar Rao. Deceased P. Sudhkar Rao was posted as Accounts Officer in Irrigation Department at Janjgir - Champa and he was permanent resident of Village Vrindavan Nagar, Burhanpur, District Ganjam, Odisha. The deceased P. Sudhakar Rao, obtained Insurance Policy No.385605027 on 16.01.2009 for sum assured Rs.1,57,872/- and Insurance Policy No.385611422 on 24.03.2009 for the sum assured Rs.9,25,620/- from the respondents (OPs). Both the policies are single premium policy and the appellant (complainant) is nominee in both the insurance policies. P. Sudhkar Rao, has died on 16.01.2010. The appellant (complainant) submitted claim for before the respondents (OPs) (Insurance Corporation) for obtaining benefits under the insurance policies after complete all the formalities and necessities, but the respondents (OPs) without proper and sufficient reasons refused to pay the claim amount under the policies to the appellant (complainant) on the ground that the insured suppressed material facts regarding his previous diseases at the time of making proposal for the insurance. The deceased insured suffered heart disease and he had taken treatment from Escorts Heart Institute & Research Centre, New Delhi. Thus, the respondent (O.P.) (Insurance Corporation) has wrongly repudiated the claim of the appellant (complainant) and committed deficiency in service. Hence, the // 3 // appellant (complainant) filed consumer complaint before the District Forum, seeking relief as mentioned in the complaint.
3. The respondents (OPs) (Insurance Corporation filed their written statement before the District Forum and denied the allegations leveled by the appellant (complainant) in the complaint and pleaded that at the time of making proposal for the insurance, the deceased policy holder P. Sudhakar Rao had given false and incorrect information regarding his health and suppressed material facts at the time of making proposal for the insurance. Prior to making proposal for the insurance the policy holder was suffering from heart disease and he had taken treatment at Escorts Heart Institute, New Delhi. The deceased policy holder replied in negative form to the questions asked in the proposal form in respect of his personal history and he intentionally suppressed the material facts regarding his previous disease and deceased was suffering from heart disease. Material fact was suppressed by the deceased policy holder therefore, the respondents (OPs) (Insurance Corporation) has rightly repudiated the claim of the appellant (complainant). The respondents (OPs) further pleaded that the deceased died at Village Vrindavan Nagar, Burhanpur, District Ganjam, Odisha, therefore, the District Forum, Bilaspur (C.G.) has no jurisdiction to decide the matter and the complaint is liable to be dismissed.
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4. Learned District Forum, after having considered the material placed before it by both the parties, dismissed the complaint by the impugned order.
5. In the instant case, the appellant (complainant) filed an application under Order 41 Rule 27 CPC for taking documents, as per list, on record as additional evidence at the appellate stage.
6. We have heard both counsels for the parties on the application filed by the appellant under Order 41 Rule 27 CPC.
7. The appellant (complainant) sought to file document i.e. photocopy of the service book of deceased P. Sudhakar Rao.
8. The appellant (complainant) has an ample opportunity to file above documents before the learned District Forum and no sufficient reason has been mentioned by the appellant (complainant) in the application for not filing the above documents before the learned District Forum. If the document sought to be filed as additional evidence by the appellant (complainant) at appellate stage is allowed, no prejudice will cause to the respondents (OPs). Therefore, the application under Order 41 Rule 27 is allowed and the above document is taken on record.
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9. Miss Meena Tiwari, learned counsel appearing for the appellant (complainant) argued that the impugned order of the District Forum, is contrary to the facts mentioned by the appellant (complainant) in the complaint. The deceased P. Sudhakar Rao, had never taken leave from the employer on the ground of medical treatment and the deceased insured had never suppressed any material facts with the respondents (OPs) (Insurance Corporation) prior to making proposal for the insurance. Merely mentioning that the deceased had taken treatment, is not sufficient the claim of the appellant (complainant), therefore, the impugned order passed by the learned District Forum, is not sustainable in eye of law and is liable to be set aside. The appeal of the appellant (complainant) be allowed and appellant (complainant) is entitled for getting the relief sought by her, which is mentioned in the complaint.
10. Shri D.Dutta, learned counsel for the respondents (OPs) has argued that the impugned order passed by the District Forum, does not suffer fro any irregularity or illegality and does not call for any interference of this Commission. He further argued that the deceased policy holder was suffering from heart disease prior to making proposal for the insurance.
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11. We have heard learned counsel for both the parties and have also perused the record of the District Forum minutely.
12. The appellant (complainant) filed documents. Document A-1 is legal notice sent by Meena Tiwari, Advocate to the respondents (OPs) (Insurance Corporation), document A-2 is letter dated 07.06.2012 sent by the appellant (complainant) to the respondents (OPs), document A- 3 is letter dated 16.05.2012 sent by the respondents (OPs) to Meena Tiwari, Advocate, document A-4 is Certificate of Death of P. Sudhakar Rao, document A-5 is LIC's Jeevan Saral Policy (with Profits), document A-6 is copy of insurance policy No.385605627, document A-7 is letter dated 12.04.2013 sent by the Executive Engineer, Public Works Department, Champa Division Champa to Meena Tiwari, document A- 8 is office order dated 26.05.2013 issued by Accounts Officer Administration - 1, Office of Accountant General, Chhattisgarh, document A-9 is form of application for leave, document A-10 is letter dated 17.04.2008 sent by Executive Engineer P.H.E. Division, Janjgir- Champa (C.G.) to the Senior Deputy Accountant General (A & E-1), O/O The Accountant General, Raipur (C.G.).
13. The respondents (OPs) (Insurance Corporation) has also filed documents. Document B-1 to B-13 are insurance proposal forms for the insurance, document B-14 is Status Report of Policy No.385605627, document B-16 & B-17 is policy bond, B-18 is Status Report of Policy // 7 // No.385611422, document B-19 is a statement regarding insurance policy No.385611422, document B-21 is Echo Report, document B-22 is form to obtain medical opinion from DMR for claim cases, document B-23 is form to obtain medical opinion from DMR for claim cases, document B-24 & B-25 is LIC's Jeevan Aastha Plan No.195.
14. The deceased P. Sudhakar Rao, obtained Insurance Policy No.385605027 on 16.01.2009 for sum assured Rs.1,57,872/- and Insurance Policy No.385611422 on 24.03.2009 for the sum assured Rs.9,25,620/- from the respondents (OPs) (Insurance Corporation) and at that time, he submitted proposal form for the insurance on his life. The respondents (OPs) filed document B-1 & B-7. In both the document in sub clause (d) and (e) of clause 11, it is mentioned thus :-
11 Personal History Answer If Yes, please Yes/No give full details
(d) Are you suffering from or have you ever suffered from ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous system ? NO
(e) Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy or any other disease ?
NO In reply to the aforesaid questions, the deceased insured gave reply in negative form.
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15. Document B-21 is photocopy of Echo Report of Escorts Heart Institute & Research Centre, New Delhi. In the said document name of P. Sudhakar Rao is mentioned and his registration No. mentioned is 218738 and regn. Date is mentioned as 9.2.2004. The name of physician doctor is A.K. Omar and further echo report is dated 17.4.2006. Looking to the above documents it appears that P. Sudharkar Rao was suffering from heart disease and before obtaining insurance policies, he had taken treatment from Escorts Heart Institute & Research Centre, New Delhi.
16. In Life Insurance Corporation of India v. Shahida Khatoon & Anr., IV (2013) CPJ 370 (NC), Hon'ble National Commission observed thus :-
"12. We have relied upon several judgments of Hon'ble Supreme Court in cases Satwant Kaur Sandhu v. New India Assurance Co. Ltd., IV (2009) CPJ 8 (SC) = VI (2009) SLT 338 = (2009) 8 SCC 316, P.C. Chacko and Anr. v. Chairman, LIC of India, III (2008) CPJ 78 (SC) = IX (2007) SLT 533 = IV (2007) ACC 773 (SC) = (2008) 1 SCC 321, LIC of India v. Smt. Asha Goel, I (2001) SLT 89 = (2001) 2 SCC 160, have discussed the term "Material Fact" as fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be material. The term material fact is not defined in the Act and, therefore, it has been understood and explained in general terms to mean as any fact which influence the judgment of a prudent insurer in fixing the premium or determine whether he would like to accept the risk.
13. Therefore, we do not find any force in the arguments of Counsel for complainant/respondent. Both the Fora below have erred in not // 9 // considering the non-disclosure of material facts by the deceased and filled the proposal form. Accordingly, we set aside the orders passed by Fora below and allow this revision petition by dismissing the complaint. No order as to cost".
17. In L.I.C. of India v. Pratima Mishra, IV (2013) CPJ 161 (Chha.), this Commission observed thus :-
"8. Even if we presume that the deceased was required to notify anything to the Insurance Corporation as per terms and conditions of the acceptance, as per printed material available in the bottom of receipt of deposit of premium, even then requirement was only this that if there is any change in the occupation of the insured, then it was required to be notified and if there is any adverse circumstances connected with financial position or the general health of the proposer or that of any members of his family then if that circumstance may be very much unimportant, but the same if occurred between the date of proposal and date of this receipt or if on a proposal for assurance or an application for revival of a policy on the life made to any office of the Corporation, then it was required to be notified. Thus, what was required to be notified was any change in the occupation of the insured or any adverse circumstances affecting the insured or his family members. If deceased insured suffered a road accident, but immediately after treatment it was found that he was not having any bony injury. When no adverse circumstances relating to his health was stated by any of the doctors to the deceased insured, then it was not required for him to notify anything to the Insurance Corporation. Even in the receipt, which was obtained by the deceased after deposit of the premium, only such terms and conditions were printed.
9. Documents in respect of treatment of deceased insured, which have been brought on record by the appellant before the District Forum // 10 // are photocopies of the treatment of the deceased insured in Ramkrishna Care Hospital, Raipur as well as Chandulal Chandrakar Memorial Hospital, Bhilai. From these documents, it appears that as per noting of Ramkrishna Care Hospital, Raiapur on C.T. Scan, it was found that there was no bony injury and all four limbs could be raised by him. Pupil of both eyes were normal. Thus, nothing substantial was noted by the Hospital for which it can be said that it was a circumstance which had adversely affected the health of the insured and was required to be notified by him to the Insurance Corporation. Later on he was treated with Chandulal Chandrakar Memorial Hospital, Bhilai from 15.03.2008, where ultimately he died on 16.03.2008. Thus, from record of the treatment given in Ramkrishna Care Hospital, it appears that it is not containing any such information which can be said to be relating to circumstance adversely affected the health of the deceased insured and was required to be notified by him to the Insurance Corporation."
18. In L.I.C. of India v. MU Jakia, IV (2013) CPJ 129 (NC), Hon'ble National Commission observed thus :-
"15. It is an undisputed fact that Shri Akhil Khan the deceased had taken LIC policy from the respondent for a sum of Rs.51,000/- on 1.1.2004. It is also an admitted fact that as per the bed head ticket of Maharana Bhopal Hospital, Udaipur the deceased was admitted to the hospital on 3.6.2003 for the treatment of chronic renal failure, hypertension, septicaemia, nephritis and was discharged from the hospital on 6.6.2003. While the State Commission has correctly come to the conclusion that the petitioner were justified in repudiating the claim of the respondents on the ground of suppression of material fact regarding health and that the finding of the District Forum rejecting the claim of the respondents were based on correct appreciation of // 11 // entire material evidence available on record and they do not suffer from any basic infirmity or illegality or perversity and hence, no interference is called for with the same and appeal was dismissed. The State Commission erroneously went on to award an ex gratia payment on humanitarian consideration of Rs.15,000/-. This is beyond the pleadings of the respondents. Further, in P.C. Chacko and Anr. v. Chairman Life Insurance Corportion of India and Ors., IV (2007) ACC 773 (SC) = IV (2007) CLT 229 (SC) = IX (2007) SLT 533 = III (2008) CPJ 78 (SC) = 2007 XAD (SC) 429, in which paragraph 20 which is relevant to us in this case reads as under :
"We are not unmindful of the fact that Life Insurance Corporation being a state within the meaning of Article 12 of the Constitution of India, its action must be fair, just and equitable but the same would not mean that it shall be asked to make a charity of public money, although the contract of insurance is found to be vitiated by reasons of an act of the insured. This is not a case where the contract of insurance or a clause thereof is unreasonable, unfair or irrational which could make the Court carried the bargaining powers of the contracting parties. It is also not the case of the appellants that in framing the aforesaid questionnaire in the application/proposal form, the respondents had acted unjustifiably or the conditions imposed are unconstitutional."[See also Life Insurance Corporation of India & Anr. v. Vinod Devi, IV (2013) CPJ 142 (NC)].
16. The National Commission in RP Nos. 858, 894, 995, 1435, 1446, 1503, 1504, 1505, 1553, 1554, 1679, 1680, 1722, 1723, 3631 of 2009, 1504 of 2006, 3147, 3789, 3855, 3858 to 3860, 3917, 3918, 4662, 4663, 4726, 4727, 4836, 4837, 5009, 5010, 5030 of 2008, 23, 164, 331, 359, 1909, 1926, 2945, 2946, 3094, 3097 of 2009 decided on 17.12.2009 have stated as under :-
// 12 // "We are afraid in terms of provisions of Consumer Protection Act 1986, we are not free to do a 'favour' to a party. As, far as the moral obligation is concerned, that has to be done 'voluntarily' by the authority concerned. The Consumer Fora cannot pass or give direction or order to give a 'favour' otherwise the word more grounds are voluntarily will lose its very meaning.
While going through the aim and objectives of the Consumer Protection Act, 1986, as highlighted by the learned Counsel for the respondent we are of the view that a distinction needs to be made between justice - natural or otherwise and 'favour'. There is no room for favouritism while dispensing justice. The word ' ex gratia' has been interpreted / understood to mean favour', rendered 'voluntarily' and on 'moral grounds', thus, clearly ousting the jurisdiction of quasi-judicial bodies like ours to direct a party to show favour. If we do this, this will not only run counter to the letter and spirit of Consumer Protection Act but also assume / confer powers which are not conferred upon us by Law / mandate. Any direction by Consumer Fora to the party concerned to grant ex gratia payment will defeat the very purpose and meaning of 'ex gratia', i.e., favour, grace shown voluntarily on moral grounds.
However, this order would not deter directing payment of ex gratia' basis by the Consumer Forums, provided, the concurrence of the sanctioning authority of insurance company, is obtained through their Counsel (Counsel for the Insurance Company) for making the payment on 'ex gratia' basis."
19. Looking to the documents filed by the parties, it appears that deceased policy holder, was suffering from heart disease prior to obtaining insurance policies and the insured had suppressed above // 13 // material facts at the time of submitting proposal form for the insurance to the respondents (OPs) (Insurance Corporation).
20. From above discussions, it becomes clear that the appellant (complainant) has not come with the clean hands and the deceased insured P. Sudhakar Rao has suppressed material facts regarding his sufferance from heart disease, when he obtained insurance policies and at that time he was a heart patient and above fact was not mentioned in the proposal form for the insurance. Therefore, the respondents (OPs) (Insurance Corporation), has rightly repudiated the claim of the appellant (complainant). The impugned order passed by learned District Forum, is just and proper.
21. In view of above discussions, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/05/2014 /05/2014