State Consumer Disputes Redressal Commission
Dipika N Patel vs Icici Lombard Gen Ins Co Lstd on 4 March, 2021
Details DD MM YY
Date of Judgment 04 03 2021
Date of filing 23 04 2010
Duration 11 10 10
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Complaint No. 26 of 2010
[Virtual Hearing]
Court no. 1
Dipika Narendrabhai Patel,
Widow of Narendrabhai Lallubhai Patel,
B-11, Gayatri Apartment, B/h. Gayatri Temple, Udhna,
Magdalla Road,
Surat. Complainant
Vs.
1. ICICI Lombard Gen. Ins. Co. Ltd.
ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400 051.
2. ICICI Lombard Gen. Ins. Co. Ltd.
2nd Floor, Above Sasuji Restaurant, Nr. RTO Office,
Majura Gate, Surat. ...Opponents
Complainant- Learned advocate Mr. R. V. Sakaria
Opponent- Learned advocate Mr. V. P. Nanavaty
Coram : Justice V. P. Patel, President
Dr. J.G.Mecwan, Member
Order by Dr. J.G.Mecwan, Member
1. Short facts giving rise to the present complaint are as under: The complainant is widow of late Narendra L. Patel and residing at the address mentioned above in cause title.
Facts of the complaint:
2. It is the submission of the complainant that late Mr. Narendra L. Patel had obtained Personal Accident Policy bearing no. 4018/IPA-376205000008/00/000 for the period of 23/09/2008 to 22/09/2009. It is the submission of the complainant that she is a widow of Late Shri Narendra Patel. It is the submission of the complainant that insured late Mr. M. B. Desai CC-11-03 Page 1 of 13 Narendra L. Patel got the sum insured Rs.25,00,000/- by paying endorsement premium Rs.2,999.73/- on 22.9.2008. During subsistence of policy the insured person and 3 others were coming from village Sarbhon to Bardoli on 8.1.2009 at around 7.45 PM in Skoda Car bearing No. GJ-5-CH-639 owned by brother of the deceased Dr. Mahendrabhai Lallubhai Patel and during the said journey the car was stopped side by on the road for natural course. Suddenly one quails car came from Sarbhon Village at full speed and it got struct directly with the deceased husband i.e. Narendra Lallubhai Patel and thereafter Mr. Mahendrabha Patel immediately rushed behind the car and tried to chase the said car and noted the number of the said car which is GJ-20 A 7107. Thereafter, he examined his brother and he found that he was dead. Therefore, the police was called and FIR lodged at around 8.30 PM. It is the submission of the complainant that the police authority after registering crime vide I Crime Register No.1/09 under IPC 279, 304 A, and M. V. Act 177, 184 and 134 visited the place of accident and sent the body for post mortem at C.H.C. Mahuva where Dr. P. R. Chaudhary, the Medical Officer performed Post Mortem of dead body on 08.01.2009 between 10.45 PM to 11.40 PM.
2.1 It is the submission of the complainant that Inquest panchnama was made on 08.01.2009 between 21:00 Hrs. to 21:30 and panchnama of place of accident was made by police authority on 09.01.2009 between 7:30 AM to 8:15 AM.
2.2 It is the submission of the complainant that the all documents along with the claim form submitted to the opponent and the investigator appointed by them. But after complying all the queries and submitting all documents the complainant kept on waiting for payment of claim by the opponent. It is further submission of the complainant that through so many inquiries via telephone as well as through letters was made but opponent has not settled the claim or repudiated the claim.
M. B. Desai CC-11-03 Page 2 of 132.3 It is submitted by the complainant that the act of the opponent was absolutely arbitrarily it clear-cut approach of unfair trade practice hence, the complainant has filed present consumer complaint before State Commission under the provision of Consumer protection Act, 1986 and prayed as under:
(1) admit and allow the present complaint (2) Direct the opponent to Pay the complainant the sum insured Rs. Rs. 25,00,000/- with 9% from the date of claim lodged till the final payment along with the benefits as per the terms and conditions of the policies. (3) direct the opponent to Pay Rs. 1,00,000/- to the complainant as compensation for harassment and hardship caused to the complainant.
(4) Direct the opponent to pay the cost of Rs. 50,000/- for filing present complaint (5) Any other or further relief(s) which this Hon'ble Commission deems fit and proper in the interest of justice and in the facts and circumstances of this case.
3. The State Commission has admitted the complaint, notice was duly served to the opponent and Ld. advocate Mr. V. P. Nanavaty, has filed his appearance for the opponent.
Defense of the Opponent:
4. Opponent has filed written statement wherein, it has been mentioned that the complaint of the complainant is based on hypothesis and surmises and on close scrutiny it would further transpire that the same is false, frivolous and vexatious.
4.1 It has been further mentioned that The present complaint is not maintainable under the summary jurisdiction as defined under the Consumer Protection Act, 1986 as the deceased has perpetrated fraud on large scale against the insurance company by obtaining so many personal accident policies and not informing the insurance company or declaring the same in the M. B. Desai CC-11-03 Page 3 of 13 proposal form which the deceased was under contractual obligation to declare.
4.2 It is further mentioned by the opponent that Deceased Narendra Lallubhai Patel was salaried person and he has income of Rs. 2,90,454/- in year 2008-09 which was gathered by the opponent during the course of investigation. It is further mentioned that the deceased had taken various P.A policies Cost totaling approx 3.5 cr.
4.3 It is further mentioned by the opponent in the written statement that as per medical records, the deceased had also undergone a bypass surgery of heart and also had multiple cysts in both the kidneys. However in the post mortem the doctor has not mentioned about any scar on the chest and the condition of liver and kidney is mentioned as NAD (No Abnormality Detected) which is not true.
4.4 It is further mentioned by the opponent that the deceased is alleged to have expired due to accidental injuries however the Police was not able to gather any evidence on the spot of the accident viz; no signs of tyre marks, glass pieces, blood stains, skin or bone fragments, cloth pieces, hair. Police had not seized anything from the spot of the accident. The police and the panchas while drawing the inquest have made an observation that the deceased had injury to the back side of scalp however the said fact is not reflected in the post mortem report thus be concluded that the observation of the police and panchas was not true.
4.5 It is further mentioned by the opponent that the discrepancies noted in the manner in which the post mortem was conducted and the police investigation, the opponent herein and other insurance companies had no other option but to lodge complaint before the Additional Director General of Police. The opponent submits that accordingly all the insurance companies wrote a letter dated 18.5.2009 to the Addl. Director General of Police seeking further investigation in view of the large scale M. B. Desai CC-11-03 Page 4 of 13 fraud perpetrated by the family members of deceased Narendrabhai and the present complainant.
4.6 It is further averment of the opponent that keeping in view the results of investigation and other facts as emerged, it has no other option but to repudiate the claim of the complainant and informed the reasons for repudiation in detail to the complainant.
4.7 It is further submission of the opponent that deceased insured has also suppressed that he had underwent major operation for heart disease and was also suffering from hypertension and diabetes. The deceased was also suffering from chronic renal failure and was on dialysis.
4.8 It is further mentioned by the opponent that the present complaint is not maintainable on the principle of utmost good faith in view of the series of non-disclosure and misrepresentation of facts by the deceased insured while submitting the proposal form. It is further submitted that the opponent herein had written to Mr. Milind Rajoure, Institute of Graphology for comparing the signatures of the deceased/insured on the various proposal forms filed with different Companies and the documents procured from Surat Municipal Corporation (where the deceased was working) and confirming whether the said signatures were of one and the same person. It is worth noting that the report submitted by him clearly mentions that the documents signed are not by one and the same person.
4.9 It has been further mentioned that deceased insured had played fraud upon the opponent herein and the policy is void ab initio as per the policy provision no. 7. "The entire policy shall be void if, whether before or after a loss, You or the Policyholder have, related to this insurance, intentionally or recklessly or otherwise concealed or misrepresented what we consider to be any material fact or circumstances."
M. B. Desai CC-11-03 Page 5 of 13Evidence produced by complainant
5. We have gone through the following documents submitted by the complainant.
Sr. Description of Document
1 Statement of Mr. Mahendra Lalubhai Patel and Mrs.
Dipikaben Narendrabhai Patel
2 Consent letter
3 Copy of insurance policy of Mr. Narendra L, Patel
4 Claim form
5 PA. Claim for BSNL subscriber beneficial policy
6 Indemnity bond/ Undertaking
7 Affidavit / consent
8 FIR
9 English translation of FIR
10 Panchnama
11 English translation of Panchnama
12 Inquest Panchnama
13 English translation of Inquest Panchnama
14 PM report of Mr. Narendrabhai L. Patel
15 English translation of Mr. Narendrabhai Patel
16 Cause of death certificate of Mr. Narendrabhai Patel
17 Copy of death certificate of Mr. Narendra Patel
18 English translation of Mr. Narendra Patel
19 News paper cutting
20 English translation of news paper cutting
21 Copy of school LC of Mr. Narendrabhai Patel
22 Copy of election card of Mr. Narendra Patel & Copy of PAN
card of Mr.NArendra L. Patel and Mrs. Dipika N. Patel 23 Copy of IT return of assessment year 2008 - 2009 24 Copy of IT return of assessment year 2007 - 2009 25 Copy of IT return of assessment year 2006-2007 26 Land holding documents 8(a) 27 Copy of DL of MR. Ramesh B. Rathod 28 Copy of RC book of GJ/5/CH/639 29 Copy of insurance policy of Bajaj Life Insurance M. B. Desai CC-11-03 Page 6 of 13 30 Copy of Insurance policy of LIC 31 Copy of PA policy of Bajaj life Insurance 32 Copy of insurance policy of The new India Insurance Co.
Ltd, 33 Crematory receipt 34 Medical summary with various medical reports of Late Shri Narendra Patel
6. Evidence produced by the opponent:
Sr. Description of Document
1 proposal form
2 Certificate of policy with wordings
3 Investigation report
Arguments of the Opponent:
7. It is argued by the opponent that the insurance company after having received the accidental death claim acquired knowledge from the insurance industry that the claimants (complainant and brother of deceased) had lodged similar claims with different insurance companies under different insurance policies. To avoid multiplicity of the investigation, an investigator, Mr. Phili Sheth, was appointed to carry out detailed investigation regarding the death of the deceased. Upon investigation it was noted that there were severe discrepancies with regards to the death of the deceased. It was noted that death, as canvassed by the claimant, car accident was not proved by the claimant. It was noted that post-mortem was conducted against the prescribed rules. The doctor who had allegedly conducted the post-mortem had denied of carving out post-mortem of the deceased. Several medical expert opinions were obtained wherein it was observed that the injuries mentioned in the post-mortem report were not coinciding with the accident and moreover the deceased died due to his pre- existing ailments.
M. B. Desai CC-11-03 Page 7 of 137.1 It is argued by the opponent that upon conclusion of the investigation it was noted that a large Scale fraud has been perpetrated by the relatives of the insured as the deceased insured had procured around 35 insurance policies within a span of a year by giving false and wrong information and suppressing material information regarding previous ailments and other insurance policies. It is submitted that the present complaint is a malafide attempt on the part of the complainant to achieve the financial result and savor the fruits of fraud perpetrated by the deceased insured and his relatives upon various insurance companies including the opponent by suppressing material facts about-
(A) Prior and earlier serious life threatening disease and ailments and medical treatment taken by the deceased insured.
(i) Block in various vessels of the heart (as per the coronary angiography conducted on 19.1.2007) and left ventricular ejection fraction of 40% (as per Eco Cardiography conducted)
(ii) Underwent coronary artery bye-pass graft (CAGB)
(iii) Diagnosed to be a case of diabetes and hypertension
(iv) Diagnosed to be having chronic renal failure and undergoing dialysis
(v) Having anaemia
(vi) detected having multiple cysts in both lobes of liver and both kidneys suggestive of polycystic renal and liver diseases
(vii) pain starting from left side of neck radiating to left arm since three months as on 12.2.2007 7.2 It is further argued by the opponent that the factual matrix of the case clearly and eloquently demonstrates that there is no legal liability between the complainant and the opponent that the complainant has failed to make out any prima facie case for entertaining this complaint by this Hon'ble Commission under M. B. Desai CC-11-03 Page 8 of 13 the provisions of the Consumer Protection Act, 1986. It is submitted that this Act is meant for redressal of genuine consumer complaints and not alleged or artificial or fraudulent or malafide consumer complaints.
7.3 It is further argued by the opponent that present complainant and/or other legal representatives of late Narendrabhai Lallubhai Patel is/have has/have filed various complaints before the learned Consumer Disputes Redressal Forum, Navsari, The learned Forum, after considering the facts and documentary evidence, concluded that the complainants had perpetrated large scale fraud and was pleased to dismiss the complaints by its judgment and order dated 29.4.2010. The appeals filed by the complainant before this Hon'ble Commission (Appeal No., 693 to 713 of 2010) have also been dismissed by detailed judgment dated 11.06.2012. Another Consumer Complaint No, 4 of 2011 has been decided by this Hon'ble Commission vide judgment dated 12.12.2014. Thus, the documents which have been relied on by the present opponent in the nature of investigation report and other documentary evidence gathered by the Investigator during the course of investigation were proved before the learned Forum as well as this Hon'ble Commission and the complainant failed to adduce evidence to rebut the said evidence and further failed to rebut the evidence that he has perpetrated fraud or that the deceased had has concealed true and correct fact with regard to his state of health, yearly income and other personal accident insurance contrary policies held by him.
7.4 It is argued by the opponent that the complainant is not entitled for any payment as prayed for in the complaint. It is required to be taken on record that the deceased insured suppressed the fact that he had undergone major operation for heart disease and was also suffering from hypertension and diabetes. The deceased was also suffering from chronic renal failure and was on dialysis. The complainant failed to prove that the deceased died due to accidental death.
M. B. Desai CC-11-03 Page 9 of 137.5 The respondent has relied upon the following judgments and submitted that the present complaint is also not maintainable and requires to be dismissed with exemplary cost.
a. Appeal No. 693 to 713 of 2010 - Hon'ble Guj. SCDRC b. Consumer Complaint No. 4 of 2011 - Hon'ble Guj. SCDRC c. Reliance Life Ins. Co. Ltd, v. Rekhaben Rathod - Supreme Court - II (2019) CPJ 53 (SC) 12.
In the above judgment at serial no. (a) and (b) complainant and facts are same while in the judgment at serial no. (c) Hon'ble Supreme Court observed as under:
"Disclosure of a pre-existing life insurance cover of the proposer is necessary to enable the insurer to assess the human life value of the proposer before the issuance of a policy."
Merits of the case:
8. In the present case it is the case of complainant that when insured was passing urine on a road side one toyeto Qualis car bearing registration no. GJ 20/A-7107 DASHED him and deceased died on the spot but opponent has repudiated the claim of the complainant.
We have gone through the record of the case and found the following issues are involved in the present matter.
(a) Whether the death of the deceased took place due to an accident.?
(b) Whether the deceased insured had suppressed facts regarding his previous ailment ?
8.1 Regarding issues mention at serial no. (a) above it is an averment of opponent that the death as canvassed by the claimant due to car accident was not proved by the claimant but the police records indicating suspicious nature and circumstances related to the accidental death.
9. We have carefully read police papers, PM report, Investigation report and noticed following anomalies.
M. B. Desai CC-11-03 Page 10 of 13(A) Insured was hit by qualis car, when he was sitting in front of parked Skoda car for answering nature's call on left hand side on Kani-Mahuva Road but the Spot Panchanama done by police on the next day morning shows no signs of any tyre marks, glass pieces, blood stains, skin or bone fragments, cloth pieces, hair etc. (B) Post mortem of deceased was carried out at night, without electricity and necessary equipment is also in violation of Circular No. HSP/1091/3663/ A dt. 04-Feb-2002 of Health & Family Welfare Dept., Govt. of Gujarat which stipulates that generally, post mortem should be done in day time.
(C) Post Mortem report makes no mention of hematoma on scalp, meaning that observation of injury to back side of scalp by police & pancahas during inquest is not true.
(D) Lack of blood in pleural cavity and abdominal cavity and no injury to lungs on right side indicate that there was no bleeding from liver. So, the opinion of cause of death given in post mortem report as 'rupture of liver due to fracture of Rt.9th and 10th ribs' does not hold good.
9.1 The above anomalies, raised so many question mark on the contention that the insured death is an accidental death. Moreover, Post mortem of deceased was carried out at night, without electricity and necessary equipment is also in violation of Circular No. HSP/1091/3663/ A dt. 04-Feb-2002 of Health & Family Welfare Dept., Govt. of Gujarat which stipulates that generally, post mortem should be done in day time.
10. We have also gone through the investigation report of Shri Phili Sheth and as per report the medical record of the deceased collected through investigation indicate that -
The discharge summary of Shree Mahavir Health & Medical Relief Society Hospital, Surat for the period 12th to 20th February 2007 confirms that insured was admitted there for CABG. It also M. B. Desai CC-11-03 Page 11 of 13 mentions the insured's medical history of Diabetes & Hypertension - of a period prior to inception of both policies.
The discharge summary of Shree Mahavir Health & Medical Relief Society Hospital, Surat for the period 10th to 11th July 2008 also confirms history of Chronic Renal Failure & Polycystic Kidney.
The discharge summary of Shree Mahavir Health & Medical Relief Society Hospital, Surat for the period 06 to 7th December 2008 - i.e. a month prior to alleged accident- also indicates that insured was admitted and treated for Chronic Renal Failure, Ischemic Heart Disease, Anaemia & S/P CABG and was advised to follow-up with Dr. Devang Desai on 14th December 2008.
11. We have gone through the medical papers submitted in this matter and on the basis of this papers it is established that deceased was suffering from chronic renal failure and ischemic heart disease, diabetes and hypertension and was typically ill and this conditions were not disclosed in the proposal from of both policies.
11.1 Considering the above facts, it is crystal clear that complainant has suppressed his medical condition in proposal forms and obtain policy from the opponent for the sum insured of rupees twenty five lacs.
12. On going through the record it is found that insured was taken various accidental policy from different non-life insurance company mostly during the period of September-November, 2008 and insured conveniently chose not to disclose the existence of this policies from other insurance companies.
12.1. Looking the above it is evident that insured has failed to disclose two material facts i.e. prior history of serious disease and also taking personal accidental policy with other insurance company and hence, in the opinion of this Commission insured has violated the policy provision No. 7 which stipulates that M. B. Desai CC-11-03 Page 12 of 13 "The entire Policy will be void if, whether before or after a loss, You or the Policyholder have, related to this insurance, intentionally or recklessly or otherwise concealed or misrepresented what we consider to be any material fact or circumstances."
13. As per the investigation report deceased had purchased insurance policies by paying premium of approximately three times of insured annual income and hence in the opinion of this commission intention of insured seems malafide.
14. In view of the aforesaid discussion, in the opinion of this Commission when insured has suppressed his prior history of serious disease and also not disclosed the personal accident policy with other insurance company with malafide intention then the act of opponent insurance company to repudiate the claim is just and proper and therefore, we pass following final order.
ORDER I) The complaint No. 26 of 2010 is dismissed.
II) No order as to costs.
III) Copy of the judgment and order be provided to the parties
free of costs.
Pronounced in the open Court today on 4th March, 2021.
[Dr. J. G. Mecwan] [Mr. V. P. Patel]
Member President
M. B. Desai CC-11-03 Page 13 of 13