State Consumer Disputes Redressal Commission
Sr.Divisional Manager Bhartiya Jivan ... vs Smt. Veena Singh on 29 April, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/2015/300
Instituted on : 21.08.2015
01. Senior Divisional Manager,
Life Insurance Corporation of India,
Divisional Office,
Bilaspur (C.G.)
02. Branch Manager,
Life Insurance Corporation of India,
Branch Office Korba - II,
District Korba (C.G.). ... Appellants.
Vs.
Smt. Veena Singh, Aged 41 years,
W/o Late Sanjay Kumar,
R/o : Basant Vihar Colony, Quarter No.A/74,
Police Station : Sarkanda,
Bilaspur, Tehsil & District Bilaspur (C.G.). ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri D. Dutta and Shri G.V.K. Rao, for the appellants.
Shri J.P. Yadu, for the respondent.
ORDER
Dated : 29/04/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 21.05.2015, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum"), in Complaint Case No.CC/216/2013. By the impugned order, the complaint of the respondent (complainant) has //2 // been allowed and the District Forum has directed the appellants (OPs) as under :-
(a) The appellants (OPs) will pay within a period of one months from the date of order a sum of Rs.6,25,000/-, which is sum insured to the respondent (complainant) along with interest @ 9% p.a. from the date of filing of the complaint 23.12.2013 till realisation.
(b) The appellants (OPs) will pay a sum of Rs.25,000/- towards compensation for mental agony to the respondent (complainant).
(c) The appellants (OPs) will pay a sum of Rs.2,000/- towards cost of litigation to the respondent (complainant).
2. Briefly stated the facts of the complaint of the respondent (complainant) are that the husband of the respondent (complainant) Late Sanjay Kumar had purchased a life insurance policy from the appellant (OPs) for the sum assured Rs.6,25,000/- for security of his life. The Policy No. is 386236115. The insured died during subsistence of the insurance policy on 25.03.2010 in Apollo Hospital, Bilaspur during treatment and his death was normal. After death of the insured, the respondent (complainant) submitted claim before the appellants (OPs) but the appellant (OPs) repudiated his claim on 31.03.2012 on the ground that prior to purchasing insurance policy, the insured was suffering from pre-existing diseases and he suppressed the same. The insured was completely healthy at the time of obtaining insurance policy and the //3 // appellants (OPs) got examined him from their authorized doctor and after their satisfaction the appellants (OPs) accepted the proposal and issued insurance policy, but the appellants (OPs) without any reason and basis repudiated the claim of the respondent (complainant) and thus committed unfair trade practice and deficiency in service. The respondent (complainant) requested the appellants (OPs) to give benefit under the said insurance policy, but the appellants (OPs) did not pay any heed to her request. Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellants (OPs) filed their written statement and averred that at the time of making proposal for the insurance policy No.386236115, the insured did not disclose the correct facts regarding his health that he was suffering from hypertension, TB, Asthma . The claim of the respondent (complainant) was repudiated by the appellants (OPs) because at the time of purchasing insurance policy, the insured suppressed the pre-existing diseases, from which he was suffering. The insurance contract is a contract of faith, therefore, it is binding for the policy holder to give information regarding correct facts at the time of making proposal regarding his health, but in the instant case, the insured has deliberately suppressed regarding his pre-existing diseases i.e. hypertension, TB, and Asthma at the time of making proposal for the insurance and violated the terms and conditions of the insurance policy, therefore, the appellants (OPs) have rightly repudiated the claim //4 // of the respondent (complainant) and did not commit any deficiency in service, therefore, the respondent (complainant) is not entitled to get any relief. The complaint is liable to be dismissed.
4. The respondent (complainant) has filed documents. The documents are letter dated 31.03.2012 sent by Senior Divisional Manager Life Insurance Corporation of India, Divisional Office, Bilaspur (C.G.) to the respondent (complainant), Discharge Summary of Mr. Sanjay Kumar issued by Apollo Hospitals, Bilaspur, case sheet issued by Apollo Hospitals, Bio-chemistry Report dated 07-02-2010 issued by Apollo Hospitals, Bilaspur, DMR Report, Medical Service Card, Statement of Claimant, Medical Attendant's Certificate, Death Certificate of Shri Sanjay Kumar issued by Apollo Hospitals, Bilaspur, insurance policy, letter dated 31.03.2012 sent by Senior Divisional Manager, Life Insurance Corporation of India, Divisional Office, Bilaspur (C.G.).
5. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the respondent (complainant) and directed the appellants (OPs) to pay compensation to the respondent (complainant), as mentioned in para 1 of this order.
6. Shri D. Dutta, learned counsel appearing for the appellants (OPs) has argued that the impugned order of the District Forum is contrary to the facts mentioned in the written statement of the appellants (OPs) Insurance Corporation, as well as documents available in the record.
//5 // From bare perusal of the documents filed by the respondent (complainant) i.e. Discharge Summary of Apollo Hospitals, Bilaspur it appears that the deceased insured Sanjay Kumar was Diabetic, Hypertensive prior to obtaining insurance policy. According to death certificate issued by Apollo Hospital, Bilaspur the cause of death of the deceased insured was DM/HTN/Bronchial Asthma and Haemorroids and he was suffering from above diseases prior to obtaining insurance policy. The insured had suppressed above facts from the appellants (OPs) and learned District Forum, has not properly analyzed the documents available on record. The appellants (OPs) have rightly repudiated the claim of the respondent (complainant). The deceased insured was suffering from diabetes and tuberculosis prior to obtaining insurance policy and the insured intentionally suppressed the above facts from the appellants (OPs) at the time of making proposal for the insurance, therefore, the respondent (complainant) is not entitled for getting any benefit from the appellants (OPs) under the insurance policy in question and the impugned order passed by the District Forum, is erroneous and is liable to be set aside.
7. Shri J.P. Yadu, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum. He further argued that the deceased insured had never suppressed any material facts to the appellants (OPs) prior to obtaining insurance policy. Merely mentioning that the deceased insured was //6 // suffering from diabetes and hypertension, is not sufficient to repudiate the claim of the respondent (complainant).
8. We have heard learned counsel for both the parties and have also perused the record of the District Forum as well as impugned order.
9. The respondent (complainant) has filed a document i.e. letter dated 31.03.2012 sent by the Senior Divisional Manager, Life Insurance Corporation of India, Divisional Office, Bilaspur (C.G.) in which it is mentioned that the deceased insured was suffering from Tuberculosis, Bronchial Asthma along with Hypertension prior to two years from making proposal for the insurance.
10. The respondent (complainant) filed Discharge Summary of deceased insured issued by Apollo Hospitals, Bilaspur, in which against the column of Surgery CTVS-103-01 CABG-NORMAL RISK was done on 04-Feb-2010, is mentioned and it was diagnosed that the deceased insured was suffering from CAD, Severe Triple Vessel Disease. In History of Present Illness, it is mentioned that deceased insured was having complaint regarding chest pain and vomiting. In Medical Report, it is mentioned that there is history of Hypertension since last two years and there is past history of TB, Asthma.
11. Deceased Sanjay Kumar obtained insurance policy No.386236115 for the sum assured Rs.6,25,000/- from the appellants (OPs) Insurance Corporation and at that time, he submitted proposal form for insurance //7 // on his life on 12.10.2009. According to the appellants (OPs) the insured gave answers to the questions asked from him in respect of his health which are as under :-
(a) Have you consulted any doctor within the past five years for the diseases in which there is requirement of treatment ? 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.
12. The appellant (complainant) filed Medical Attendant's Certificate in which also the exact cause of death of the deceased insured is mentioned. Looking to the Medical Attendant's Certificate, it appears that the deceased insured was suffering from CAD, Severe Triple Vessel Disease. In Death Certificate, it is mentioned that cause of death of the deceased insured is DM/HTN/Bronchial Asthma & Haemorroids.
13. In Gurmeet Kaur @ Meeto & Anr. vs. Life Insurance Corporation of India, III (2015) CPJ 246 (NC), Hon'ble National Commission has observed that "Deceased had been suffering from diabetes for the last 14-15 years and suffered from chronic renal failure for last 4-5 years. No evidence on record to prove that information given by Doctor regarding health status of insured was incorrect. Violation of conditions of policy established. Repudiation justified."
//8 //
14. In Revision Petition No.2877 of 2013 - M/s. Aviva Life Insurance Company India Pvt. Ltd. vs. Smt. Phool Kunwar, vide order dated 04.08.2015, Hon'ble National Commission, has observed thus :-
"15. As apparent from the record of Apollo Hospital, the deceased was suffering from diabetes mellitus and hypertension for last two years prior to his death. So, it stands clearly proved that deceased life assured had concealed and suppressed material facts at the time of obtaining the insurance policy.
16. In this regard, observations made by Hon'ble Supreme Court in "Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009) 8 SCC 316" which are quite relevant to the present case, are quoted as under :-
"Thus, 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 to 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."
In para 29 of Satwant Kaur Sandhu's case (Supra), the Hon'ble Apex Court has held that :
"29. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was probably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent
- insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated.
//9 //
17. This Commission in Life Insurance Corporation of India Vs. Smt. Minu Kalita, R.P. No.1167 of 1997 decided on 19.03.2012" has held that :-
"It is settled law that the contract of insurance is based on good faith. The information as to the insured having suffered from Cancer before the policy was taken and the hospitalization for the same came to light afterwards and the petitioner is not to know this by an examination of their medical officer. It is for the respondent to give the correct information on his health which he did not disclose at that time. This ground of incorrect information and false statements regarding age of the insured and income make the insurance contract null and void. We find there is no deficiency of service by the petitioner Life Insurance Corporation of India. Both the District Forum and the State Commission have not appreciated the facts brought out by the petitioner in repudiating the claim."
15. 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 considering the non-disclosure of material facts by the deceased and filled //10 // 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".
16. 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 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 //11 // 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 :-
"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 //12 // 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."
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 //13 // 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 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. From above discussions, it becomes clear that the respondent (complainant) has not come with the clean hands and the deceased insured Late Sanjay Kumar has suppressed material facts regarding his sufferance from DM/HTN/Bronchial Asthma & Haemorroids since last two years when he obtained policy and at that time he was a patient of DM/HTN/Bronchial Asthma & Haemorroids and above fact was not mentioned in the proposal form for the insurance. Therefore, the appellants (OPs) have rightly repudiated the claim of the respondent (complainant). The impugned order passed by learned District Forum, is erroneous and is labile to be set aside.
//14 //
19. Consequently, the appeal filed by the appellants (OPs) is allowed and impugned order dated 21.05.2015, passed by the District Forum, Bilaspur (C.G.) in Complaint Case No.CC/216/2013, is set aside and complaint filed by the respondent (complainant) before the District Forum, Bilaspur (C.G.), is dismissed. There shall be no order as to costs.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K.Poddar)
President Member Member
29 /04/2016 29 /04/2016 29 /04/2016