State Consumer Disputes Redressal Commission
Bajaj Allianz Life Insurance Co. Ltd. vs Kamikkar Singh on 26 February, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.977 of 2012
Date of Institution: 24.07.2012.
Date of Decision : 26.02.2016.
Bajaj Allianz Life Insurance Co. Ltd., 4th Floor, Shanghai Tower,
SCO-13, Feroz Gandhi, Ludhiana, District Ludhiana through its
Branch Manager.
(through Mr. Rajinder Singh Kalsi, Zonal Legal Manager (North),
Bajaj Allianz Life Insurance Co. Ltd., SCO-215-217, Sector-34,
Chandigarh.
.....Appellant/opposite party
Versus
Kamikkar Singh aged about 43 years son of Malkit Singh R/o 248,
Village Mehal Kalan, Patti Sodha, District Barnala.
.....Respondent/Complainant
First appeal against order dated
01.06.2012 passed by the District
Consumer Disputes Redressal
Forum, Barnala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. Varun Chawla, Advocate For the respondent : Sh. Harsh Goyal, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (opposite party in the complaint) has directed this appeal against the respondent herein (the complainant in the complaint), aggrieved by order dated 01.06.2012 of District Consumer Disputes Redressal Forum Barnala (in short the "District Forum"), accepting the complaint of the complainant by directing the OP now appellant to pay the amount of First Appeal No.977 of 2012 2 Rs.3 lakhs to the respondent of this appeal alongwith interest @ 9% per annum, besides amount of Rs.10,000/- as costs of litigation.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that Sukhwinder Kaur wife of complainant obtained insurance policy bearing no.0111644723 for a sum of Rs.3 lakhs in her name against premium of Rs.30,000/-. Only single installment of Rs.30,000/- has been deposited with OP by complainant and it operated from 21.10.2008. Sukhwinder Kaur life assured died on 09.11.2008 at her Village Mehal Kalan on account of heart attack. Intimation about her death was given to OP alongwith all the required documents, but the OP repudiated the insurance claim of the complainant, vide letter dated 25.02.2010 arbitrarily. The complainant has, thus, prayed that OP be directed to pay the insured amount to the complainant as nominee of his wife Sukhwinder Kaur, besides Rs.50,000/- as compensation for mental harassment and Rs.5000/- as costs of litigation.
3. Upon notice, OP appeared and contested the complaint of the complainant by averring it to be not maintainable. The complainant is estopped by his own act and conduct from filing the complaint. The complaint is alleged to be false. On merits, it was submitted that wife of complainant Sukhwinder Kaur obtained the policy in question by depositing Rs.30,000/- on 21.10.2008. The complainant is admitted to be the nominee of Sukhwinder Kaur life assured. It was further averred that wife of complainant was First Appeal No.977 of 2012 3 hospitalized and treated for Pancytopenia with Aplastic Anaemia during 22.06.2008 to 03.07.2008. She was fully aware about this, but the policy was taken by her by suppressing the material information.
Matter was referred to investigating agency Hawak Vision, Pitampura Delhi and it was found that the said medical treatment of Sukhwinder Kaur was prior to the commencement of policy. The OP justified the repudiation of the contract of insurance on the ground of concealment of material fact of pre-existing ailment of life assured. The OP prayed for the dismissal of the complaint.
4. Rejoinder was filed by complainant in support of his averments. The complainant tendered in evidence affidavits Ex.CW- 1 to Ex.CW-3 alongwith documents, Ex.C-1 to Ex.C-9 and closed the evidence. As against it, the OP tendered in evidence affidavit Ex.R-1 to Ex.R-8 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant. Dissatisfied with the order of District Forum, the OP now appellant preferred this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. It was submitted by counsel for the appellant that life assured Sukhwinder Kaur proposed for Unit Linked "Bajaj Allianz Fortune Plus" for a sum assured of Rs.3 lakhs, vide proposal dated 18.10.2008. The OP issued policy in question to her. The terms and conditions of the insurance policy were duly explained and policy was delivered to life assured. Sukhwinder Kaur life assured died on 09.11.2008 within First Appeal No.977 of 2012 4 less than 19 days only of acceptance of risk under the policy. She was suffering from Pancytopenia with Aplastic Anaemia and remained admitted in D.M.C. Ludhiana hospital from 22.06.2008 to 03.07.2008. She remained on medication for above ailment till her death. The material fact of her pre-existing ailment was concealed, when she took the insurance policy and it was rightly repudiated by OP, because the Contract of Insurance is based on utmost good faith. The counsel for the respondent in this appeal argued to the contrary before us.
6. Evidence is required to be examined by us to settle the controversy between the parties in this case. Affidavit of complainant is Ex.CW-1 on the record in support of his averments. Ex.C-1 is the proposal form for the life insurance. Ex.C-2 is the letter addressed to complainant dated 22.10.2008 alongwith Intial Unit Statement, First Premium Receipt, letter dated 22.10.2008. Ex.C-3 is the copy of receipt of Rs.30,000/- deposited by life assured with OP. Ex.C-4 is the copy of insurance policy. Ex.C-5 is the copy of letter dated 25.02.2010 from OP to complainant regarding rejection of claim under the policy. Ex.C-6 is the copy of death certificate of Sukhwinder Kaur life assured. Ex.C-7 is the copy of cremation report. Ex.C-8 is the copy of death claim submitted by complainant with OP. Ex.C-9 is the copy of affidavit of complainant. Ex.CW-2 is the affidavit of Gurdeep Singh and Ex.CW-3 is the affidavit Sukhwinder Singh. The OP relied upon affidavit of Gurpreet Singh Gill, Branch Manager of OP. He deposed that life assured First Appeal No.977 of 2012 5 Sukhwinder Kaur was hospitalized and was treated for Pancytopenia with Aplastic Anaemia during 22.06.2008 to 03.07.2008. She very well knew these facts before taking the insurance policy. He further stated that she intentionally had not disclosed these facts prior to deposit of first premium receipt and in the proposal form also. Ex.R-2 is the copy of proposal form. Ex.R-3 is the death claim form. Ex.R-4 is the claim notes and decisions. Ex.R-5 is the copy of rejection of claim under policy from OP to complainant. Ex.R-6 is the report of Hawk Vision Agency. Ex.R-7 is the Histopathology report of life assured of DMC Ludhiana. Ex.R-8 is the policy document.
7. From appraisal of evidence on the record, we find that death certificate Ex.C-6 is photostat copy of death certificate. The date of death of Sukhwinder Kaur is 09.11.2008, although not required in any of the column, it has been super added with heart attack. Original certificate has not been produced; wherefrom its authenticity could be ascertained. The main reliance of the appellant is on proposal form Ex.R-2, wherein this point has been replied in negative, as to if complainant was suffering from any such ailment. After declaration to this effect has been contained in it. The report of the investigating agency is Ex.R-6 to the effect that she was suffering from Pancytopenia with Aplastic Anaemia before the commencement of the policy. The investigating agency relied upon the details of D.M.C. Ludhiana in this regard and on reports from 21.06.2008 to 31.06.2008. Ex.R-7 is the report of Department of Pathology. It recorded as "Adequate bone marrow biopsy shows First Appeal No.977 of 2012 6 increased fat spaces with marked depression of haematopoietic elements and relative prominence of lymphoid cells- severe aplastic anaemia". The record of DMC Hospital Ludhiana is contained in discharge summary, which is part of it is before us. The life assured was diagnosed on 22.06.2008 as Pancytopenia with Aplastic Anaemia. She was admitted in the DMC Hospital against CR no.62904, admission no.21586 on 22.06.2008 and was discharged on 03.07.2008. She was hospitalized on 22.06.2008 in DMC Hospital. Her LAMA summary is also on the record. The only point for adjudication before us is whether any nexus between cause of death and the suppression of material fact is essential or not. The counsel for the respondent referred to law laid down by our own Commission in "Life Insurance Corporation of India Vs. Malkiat Kaur and others" 1998(1) CLT-509 , wherein it has been held that "The nexus has to be established between the cause of death and the material fact concealed. The Corporation did not collect any material regarding the medicines prescribed or the treatment taken by the insured. The repudiation of insurance claim was held unjustified". The National Commission has held in "Life Insurance Corporation of India & others Vs. Nita Bhardwaj" 2014(1)CPJ- 409 that it is immaterial whether cause of death had any nexus or not with disease suffered and suppressed by insured. it is not essential that there should be any direct nexus of the disease suppressed and the cause of death of life assured. Any mis- statement or wrong answer given in the proposal form by the life First Appeal No.977 of 2012 7 assured renders the Contract of Insurance voidable, which is based on the principle of utmost good faith. We find that the insurance policy issued to life assured was with commencement of risk dated 21.10.2008 and she died on 09.11.2008 at her Village Mehal Kalan just thereafter. She was admitted in DMC Ludhiana, vide record of DMC Ex.R-7. She was remained admitted from 22.06.2008 to 03.07.2008 before taking the policy at DMC Hospital Ludhiana. She had not disclosed about her previous ailment when she took the insurance policy and gave wrong declaration by suppressing this material information. She was required to disclose the fact of her previous ailment, which was in her knowledge, as she remained admitted in the above Hospital prior to taking the policy. The report of investigating agency is Ex.R-6 to the effect that it collected the evidence from DMC Hospital Ludhiana and rightly found that she was earlier suffering from Pancytopenia with Aplastic Anaemia, but she intentionally suppressed this fact while filling up the proposal form. The Contract of Insurance is based on good faith, whosoever makes a mis-statement renders the Contract of Insurance voidable at the option of the other. As held by the National Commission in the above referred authority. It is not essential that there should be any direct nexus between the cause of death and fact suppressed regarding previous ailment; because it is the suppression of material information, which renders the Contract of Insurance voidable. It was for Insurance Company to make up its mind whether to accept the Contract of Insurance or not. If life assured had truly disclosed about First Appeal No.977 of 2012 8 her fact about this pre-existing ailment in the proposal form. Resultantly, the order of the District Forum under challenge in this case is not sustainable in the eye of law.
8. As a result of our above discussion, we accept the appeal of the appellant and by setting the above order of the District Forum, the complaint of the complainant stands dismissed.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.75,000/- in compliance with the order of this Commission. Both these amounts alongwith interest, which accrued thereon, if any, be remitted by the Registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
10. Arguments in this appeal were heard on 19.02.2016 and the order was reserved. Now the order be communicated to the parties.
11. The appeal 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 26, 2016.
(MM)