State Consumer Disputes Redressal Commission
Balraj Kumar vs Lic on 18 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.968 of 2007
Date of institution : 6.7.2007
Date of decision : 18 .5.2012
Balraj Kumar son of late Prem Parkash C/o M/s Prem Floor Mills, Village and
Post Office Garha, District Jalandhar.
.......Appellant
Versus
Life Insurance Corporation of India, Divisional Office, Jeevan Parkash, Model
Town Road, Jalandhar-144 001 through its Senior Divisional Manager.
...Respondents
First Appeal against the order dated 7.5.2007 of
the District Consumer Disputes Redressal
Forum, Jalandhar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri K.C. Malhotra, Advocate and Shri Munish Goel, Advocate.
For the respondents : Shri Rajneesh Malhotra, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
VERSION OF THE APPELLANT:
The appellant had taken ASHA DEEP life insurance policy (two) with accident benefit under the plan of table No.121 on his own life from the respondents. The particulars of these policies are as under:-
Proposal Form dated 12.03.1999 14.02.2001
Policy No. 131211349 131367229
Sun Assured Rs.2,00,000/- Rs.3,00,000/-
Term 25 years 25 years
Mode of payment of Yearly Yearly
premium
Premium installment Rs.8714/- Rs.13,265/-
Date of commencement 19.03.1999 28.04.2000
First Appeal No.968 of 2007. 2
The said policies also provided medical expenses in case the policy-holder gets one of the four health problems.
2. It was further pleaded that the proposal for insurance on his own life for ASHA DEEP under medical Scheme was accepted by the appellant. He was medically examined by the respondents and special medical tests were prescribed for ASHA DEEP plan for the panel authorized Medical Examiner of the choice of the respondents.
3. It was further pleaded that the appellant had perfect health. The policies were taken by the appellant from the Branch Office Unit No.2, Jalandhar under the supervision and administrative control of respondent No.1.
4. It was further pleaded that the appellant fell ill with symptoms suggestive of renal/kidney problem and for that purpose he visited and consulted Indraprasha Apollo Hospital, New Delhi (in short "Apollo Hospital"). It was diagnosed with symptoms of advanced kidney failure like vomiting, nausea, loss of appetite and weakness. The investigations conducted on the appellant confirmed the diagnosed as end stage of kidney failure. The appellant was advised kidney transplant as early as possible. The kidney of the appellant was transplanted on 20.8.2003 in the said hospital where he was admitted on 18.8.2003 and was discharged on 29.8.2003.
5. It was further pleaded that after the discharge from Indraprastha Apollo Hospital, New Delhi on successful kidney transplantation, the appellant lodged the claim with the respondents to give him the benefits payable and covered by Asha Deep policy. The claim form was also submitted along with relevant documents and all the formalities were completed which were required for settlement of the claim. However the respondents repudiated the claim vide their letter dated 22.12.2004 conveyed by post to the appellant vide letter dated 17.2.2005 which amounted to deficiency in service. The appellant also suffered mental tension, pain and agony for which he is entitled to First Appeal No.968 of 2007. 3 compensation amount of Rs.1,00,000/-. Hence the complaint for immediate payment of 50% of the sum assured in each of the two policies, payment of the balance 50% of sum assured along with vested bonus on full sum assured, an amount equal to 10% of the amount assured every year on the policy anniversary after 20.08.2003, waiver of premium (including accident premium) and return of yearly premiums paid. Compensation, interest and costs were also prayed.
VERSION OF THE RESPONDENTS:
6. The respondents filed the written reply. It was admitted that the appellant had taken two Asha Deep life insurance policies with the particulars given above. One policy had commenced with effect from 24.4.2000 and the other was having commencement date as 19.3.1999. It was also admitted that the appellant had reported that he had undergone kidney transplantation on 20.8.2003 in Apollo Hospital. The respondents have asked the appellant to produce the prescription slip and the test reports from the doctors who diagnosed his problem and who referred him to Apollo Hospital. The respondents had also asked the appellant to produce the dialysis card, last dialysis certificate, scanning reports in original for considering his claim but the appellant had replied vide letter dated 24.2.2004 that he had visited Delhi on business tour and got some urinary problem and had gone to Apollo Hospital for checkup when his kidney problem was diagnosed. Therefore the appellant had failed to cooperate with the respondents.
7. It was further pleaded that the appellant had filed the complaint against the respondents in the Insurance Ombudsman, Chandigarh on 9.4.2004. After due investigation it had come on record that the appellant was not having good health prior to taking the life insurance policies. Therefore his contact was void ab-initio.First Appeal No.968 of 2007. 4
8. It was further pleaded that the appellant had taken medical treatment in Christian Medical College and Hospital, Ludhiana (in short "CMC"). The respondent had written some letters to CMC authorities to supply them the treatment record of the appellant relating to Balraj Kumar appellant. The respondents had asked the appellant to get Form No.3816 completed from CMC but the appellant failed to pay any attention to it. Thereafter the respondents had received the treatment certificate from CMC on 18.9.2004 and this fact was brought to the notice of Insurance Ombudsman. On 30.11.2004 the order was passed by the Insurance Ombudsman and the appellant had withdrawn his complaint.
9. It was further pleaded that as per the medical record received from CMC, Department of Nephrology and Renal Transplantation, the appellant was diagnosed for Mesangio Proliferative Glomerulonephritis on 26.11.1994 prior to which he was ailing from swelling over the body for four months and was treated for the same. Thereafter the appellant had undergone two courses of Cyclophosphamide Therapy on 3.10.1995 and 8.12.1995 and had declining renal function. Again in December 1999, the appellant was tested. Biopsy was done repeatedly in September 2000 and even haemodialysis bi-weekly was started from 30.10.2002.
10. It was further pleaded that all these facts reveal that the appellant was not healthy. He had renal (kidney) problem since 1994 which was prior to the date of commencement of both the policies. D.M.R. had recommended for rejection of the claim. The appellant had mala fide intention to cheat the respondents and with fraudulent intention he had suppressed material facts regarding his ill-health in both the proposal forms. He had undertaken the life insurance policy for Rs.2 lakh in March 1999 and for Rs.3 lakh in April, 2000.
Based on the investigation reports and medical certificates received from CMC and on the opinion of D.M.R. the respondents had declared the life insurance First Appeal No.968 of 2007. 5 policies taken by the appellant as null and void and repudiated the Asha Deep claims of the appellant under both the policies and the decision was communicated to the appellant. It was further pleaded that the repudiation was legal and valid. Dismissal of the complaint was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM:
11. The parties produced affidavits/documents in support of their respective versions.
12. Learned District Forum dismissed the complaint vide impugned order dated 7.5.2007.
13. Hence the appeal.
DISCUSSION:
14. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned order dated 7.5.2007 be set aside and the respondents be directed to pay adequate compensation under the Asha Deep policies along with compensation, interest and costs.
15. On the other hand, the submission of the learned counsel for the respondents was that the appellant had fraudulently suppressed material facts relating to his health and, therefore, he was not entitled to any medical claim.
It was prayed that the appeal deserves dismissal and it be dismissed.
16. Record has been perused. Submissions have been considered.
17. Admittedly the appellant had taken Asha Deep life insurance policy No.131211349 on 12.3.1999 for an amount of Rs.2,00,000 with the date of commencement date as 19.3.1999. He had taken another Asha Deep life insurance policy on 14.2.2001 bearing No.131367229 for an amount of Rs.3,00,000/- with the commencement date as 28.4.2000.
18. It is also undisputed that under the Asha Deep policy certain benefits and medical reimbursement are permissible for which the insurance claim was lodged by the appellant and was repudiated by the respondents. First Appeal No.968 of 2007. 6
19. The version of the appellant was that he fell ill with symptoms suggestive of Renal/Kidney problem and for that purpose he visited Apollo Hospital. His disease was diagnosed with symptoms of advanced kidney failure like vomiting, nausea, loss of appetite and weakness. The investigations were conducted on the appellant and the disease was diagnosed as end stage of kidney failure. The appellant was advised kidney transplantation as early as possible. The kidney was transplanted on 20.82003. The appellant was admitted in Apollo Hospital on 18.3.2003 and was discharged on 29.8.2003. These facts have been pleaded in para 7 of the complaint by the appellant.
20. The claim relating to policy No.131211349 was repudiated by the respondents vide their letter dated 22.12.2004 (Ex.C-16) on the plea that in answer to question No.11 in the proposal form the appellant had answered the questions as under:-
11.(a) During the last five years did you consult a Medical No Practitioner for any ailment requiring treatment for more than a week?
(b) Have you ever been admitted to any hospital or nursing No home for general check-up, observation, treatment or operation?
(d) Are you suffering from or have you ever suffered from No ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous System?
(i) What has been your usual state of health? Good
21. Similarly the claim of the appellant with regard to other policy bearing No.131367229 was repudiated vide letter dated 22.12.2004 (Ex.C-17) on the same plea that for question No.11, the appellant had answered as under:- First Appeal No.968 of 2007. 7
11.(a) During the last five years did you consult a Medical No Practitioner for any ailment requiring treatment for more than a week?
(b) Have you ever been admitted to any hospital or nursing No home for general check-up, observation, treatment or operation?
(d) Are you suffering from or have you ever suffered from No ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous System?
(i) What has been your usual state of health? Good
22. The appellant has also given in writing to the respondents that he had not taken any treatment from CMC vide his letter dated 3.8.2004 (Ex.C-21).
23. On the other hand, the respondents have pleaded in preliminary objections No.4 and 5 that the version of the appellant was totally false. He had not developed the disease suddenly on 18.8.2003. Rather he was suffering from kidney disease a long earlier and he had been taking medical treatment in CMC. The respondents had applied to CMC authorities for supply of medical treatment record of Balraj Kumar but they had refused to do so on the plea that the said record can be given only on the request of Balraj Kumar. Thereafter the respondents had received the treatment certificate from CMC on 18.9.2004 and this fact was brought to the notice of the Insurance Ombudsman before whom the appellant had filed a complaint against the respondents. Instead of granting sanction to CMC authorities to supply the treatment record to the respondents, the appellant preferred to withdraw the complaint from the court of Insurance Ombudsman.
24. The inference, therefore, goes against the appellant. If the appellant had not taken any medical treatment from CMC, there was no problem for him to First Appeal No.968 of 2007. 8 grant permission to the CMC authorities, for supply of necessary material to the Insurance Ombudsman. The very fact that instead of granting sanction to the CMC authorities the appellant preferred to withdraw the complaint before the Insurance Ombudsman leads only to one presumption that the appellant wanted to hide some record.
25. Even otherwise the respondents have succeeded to prove that one Balraj Kumar had taken the medical treatment from CMC. A copy of the outdoor patient register has been proved as Ex.OW-1 in which the name of Balraj Kumar is specifically mentioned at serial No.147158 and he has been shown as male and his age is also mentioned to be 26 years. A copy of the outdoor patient register has also been proved as Ex.OW-2 in which Balraj Kumar's name was mentioned at serial No.147458 and he has been shown to be male. Another copy of in-patient admission register has been proved as Ex.OW-3 which proves that Balraj Kumar had taken the medical treatment at serial No.147458 on 3.11.2002. A copy of the in-patient admission register has also been proved as Ex.OW-4 in which Balraj Kumar had also got medical treatment at serial No.147458 on 7.11.2002. The disease is also mentioned as nephrology. He was admitted in private ward and Dr. B. Pawar had attended to him.
26. The respondents have also proved the bill issued by CMC No.14342/1 relating to patient No.C-147458 in the name of Balraj Kumar. The date of admission is shown as 6.11.2002 and date of discharge is shown as 7.11.2002. This document has been proved as Ex.OW-5. The entry of disease is also mentioned and the patient was attended by Dr. Basant Pawar and the ward number is mentioned as 15.
27. The respondents have also proved document Ex.OW-6. This is again the bill issued by CMC in the name of Balraj Kumar where the date of admission is shown as 30.10.2002 and date of discharge is shown as 3.11.2002. First Appeal No.968 of 2007. 9 The name of the disease of the patient is also mentioned as LAMA and he was attended by Dr. Basant Pawar. He was admitted in Ward No.15 and his Unit number is mentioned as C-147458. General Pathology (Histo Pathology Section) has been proved as Ex.OW-7. It is issued by CMC. Name of Balraj Kumar is also mentioned and unit number is shown as C-147458 and the name of the doctor is also mentioned as Dr. B. Pawar. Renal biopsy report was given and the findings were suggestive of end stage of rental disease. The in- patient diagnostic card has also been proved as Ex.OW-8 in which unit number continues to be C-147458. Occupation of Balraj Kumar is mentioned as business. Age is also mentioned. Another copy of the in-patient diagnostic card has been proved as Ex.OW-9. Unit number is the same, name of the patient is the same and occupation is also mentioned as the same.
28. No doubt, father's name of Balraj Kumar was not mentioned and the address of Balraj Kumar was not mentioned but at the same time it clearly means that Balraj Kumar had been taking the medical treatment from CMC for kidney problem when the appellant has failed to lead any evidence to prove if this Balraj Kumar was some other person and not the appellant. The disease tallied, name tallied and the conduct of the appellant for not granting permission to CMC to supply the medical record to Insurance Ombudsman clearly leads to the presumption that this Balraj Kumar was the same who is the appellant.
29. The CMC had written letter to the Divisional Manager of the respondents on 9.9.2004 (Ex.OW-10). Subject is mentioned as Asha Deep claim under P.No.131361229 and 131211349 favouring Shri Balraj Kumar Budhiraja (LA) s/o Sh. Prem c/o M/s Prem Floor Mills, Garha, Jalandhar. This letter was written by CMC in response to the letter dated 20.8.2004 regarding the medical record of Balraj Kumar Budhiraja son of Prem Parkash C-147458 and the CMC enclosed the medical certificate issued by the Consultant- First Appeal No.968 of 2007. 10 Department of Nephrology. This letter dated 9.9.2004 (Ex.OW-10) clearly reveals that the record supplied by CMC to the respondents relates to same Balraj Kumar who is the appellant. The father's name and other particulars of Balraj Kumar are mentioned in the letter. In the letter also the name of Balraj Kumar Budhiraja son of Prem Parkash is written. If Balraj Kumar who had taken the medical treatment from CMC had been a different person, then CMC authorities would have written it that this medical record of Balraj Kumar does not relate to Balraj Kumar Budhiraja son of Prem Parkash. The very fact that CMC authorities have referred to Balraj Kumar Budhiraja son of Prem Parkash and had supplied the record of C-147458 clearly reveal that Balraj Kumar who had taken the medical treatment in CMC in the year 2002 at C No.147458 was none else than the appellant himself.
30. The medical certificate dated 12.8.2004 (Ex.OW-11) sent by CMC vide their letter dated 9.9.2004 (Ex.OW-10) reads as under:-
" 37 years old Balraj Kumar with hospital unit No.C- 147458 was seen in Christian Medical College and Hospital, Ludhiana on 26/11/1994 with swelling over the body for 4- months. He was investigated and a renal biopsy done revealed Mesangio Proliferative Glomerulonephritis. He was treated with steroids and Azathioprine. He also underwent two courses of cyclophosphamide therapy on 3/10/95 to 8/12/95. Post chemo his renal function tests were normal.
He came back for follow up after 4 years on December 1, 1999. When he came for follow up after 4 years, he had declining rental function tests for which, he underwent a repeat biopsy on 25th of September, 2000, which was suggestive of end stage renal disease. He was initiated on conservative management for chronic renal failure from 26/9/2000. He First Appeal No.968 of 2007. 11 subsequently developed uremic symptoms and was initiated on haemodialysis-biweekly from 30/10/2002.
Balraj underwent a live-unrelated transplantation in Apollo Indraprastha Hospital, New Delhi, after which he has been having regular follow ups in Christian Medical College and Hospital, Ludhiana from 20/8/2003. He underwent an acute cellular rejection-(Biopsy-proven) which was responsive to intravenous methyl-Prednisolone."
31. It was also mentioned that he was doing well and the names of medicines given to him were also mentioned.
32. Dr. A.K. Dutta, M.B.B.S., 159, Lajpat Nagar, Jalandhar had given his affidavit (Ex.OW-12). He has deposed that he had medically examined Balraj Kumar on 14.2.2001 but Balraj Kumar had not disclosed if he was suffering from any disease. The affidavit of Sital Ram, Investigating Officer has been proved as Ex.OW-13. He has deposed that he had investigated the case of Balraj Kumar and he had perused the documents. He has also given the certificates issued by CMC. Even in the presence of all these documents, the appellant has given a certificate that he had not taken medical treatment from CMC. This clearly reveals that the appellant can go to that extent in telling lies.
33. Even if the version of the appellant is believed that he had not taken medical treatment in CMC as alleged by the respondents but the version of the appellant himself is unbelievable that he suddenly went to Apollo Hospital in New Delhi because symptoms suggestive of renal/kidney problem appeared. He was admitted on 18.8.2003, kidney was transplanted on 20.8.2003 and he was discharged on 29.8.2003. It is just like a picture story. Therefore this version of the appellant appears to be totally unbelievable if in one day Balraj Kumar suddenly developed a situation where kidney had to be transplanted. First Appeal No.968 of 2007. 12 Immediately he found the kidney donor. The appellant has also not given the record/discharge summary of Apollo Hospital from where he had taken the medical treatment.
34. Learned counsel for the appellant submitted that since Asha Deep polices were purchased by the appellant from the respondents on 12.3.1999 and on 14.2.2001, therefore, the respondents could not repudiate the claim more than two years later vide letters dated 22.12.2004 Ex.C-16 and Ex.C-17. Reference was made to the judgment of Hon'ble Supreme Court reported as "Mithoolal Nayak vs. LIC of India" AIR 1962 SC 814 (SC).
35. In that judgment, it was held by the Hon'ble Supreme Court that as per Section 45 of the Insurance Act, the Life Insurance Corporation of India can repudiate the insurance claim if it is proved that the statement made by the life assured on a material fact was false and that he had suppressed the facts which were material for him to disclose. The suppression must have been made fraudulently and the policy-holder must have known at the time of making the statement that it was a false statement or that he had suppressed the material facts. These constituents can be proved even after the expiry of two years.
36. These insurance policies were taken by the appellant in the year 1999 and 2001. He had allegedly taken medical treatment from Apollo Hospital from 18.8.2003 to 29.8.2003 and as per the medical certificate given by CMC Balraj Kumar had taken the medical treatment even on 26.11.1994, 3.10.1995 and 8.12.1995.
37. The submission of the learned counsel for the appellant was that as per the medical certificate of CMC, Balraj Kumar had come to CMC on 20.8.2003. It was not possible as the appellant was admitted in Apollo Hospital from 18.8.2003 to 29.8.2003 and on 20.8.2003 he had taken the transplantation of kidney.
First Appeal No.968 of 2007. 13
38. It appears to be a clerical error in the date mentioned in the medical certificate of CMC Ex.OW-11 but when all other facts stated in the medical certificate tallied with the appellant, therefore, it cannot be stated that this medical certificate did not relate to the appellant.
39. The law has been settled by the Hon'ble Supreme Court in a number of judgments that the contract of insurance is a contract of Uberrima fides and the parties are bound to disclose the material facts to each other. It was held by the Hon'ble Supreme Court in the judgment reported as Mithoolal Nayak v. Life Insurance Corporation of India, AIR 1962 Supreme Court 814 that if the life insured had suppressed the material facts with fraudulent intention then the insurer would be at liberty to repudiate the insurance claim.
40. This dictum of law was reiterated by the Hon'ble Supreme Court in the subsequent judgment reported as "Life Insurance Corpn. Of India & Ors. v. Asha Goel (Smt.) & Anr., I (2001) SLT 89 = (2001) 2 SCC 160" in which it was observed as under : -
"The contracts of insurance including the contract of life assurance are contracts uberimma fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material First Appeal No.968 of 2007. 14 facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person."
41. This view of law has been approvably reiterated by the Hon'ble Supreme Court in the judgment reported as "P.C.Chacko & Anr v. Chairman, Life Insurance Corporation of India & Ors. III (2008) CPJ 78 (SC).
42. No doubt the appellant has denied having taken medical treatment but the documents proved by the respondents and conduct of the appellant before the Insurance Ombudsman clearly reveal that the appellant was telling lies and he had taken medical treatment from CMC in the year 1994, 1995 and 1999 and also in the year 2000. So also in 2002.
43. It is, therefore, clearly proved that the appellant had concealed material facts while filling the proposal forms and had suppressed material facts. Therefore he is not entitled to any medical claim regarding his medical problem or any other relief. However the paid value, if any, shall be payable as per rules.
44. In view of the discussion held above, we do not find any merit in the present appeal and the same is dismissed.
45. The arguments in this case were heard on 7.5.2012 and the order was reserved. Now, the order be communicated to the parties.
46. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
May 18 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.968 of 2007. 15