State Consumer Disputes Redressal Commission
Bachni vs Dhfl Pramerica Lic on 27 February, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
(1) First Appeal No.495 of 2015
Date of Institution:11.05.2015
Order Reserved on: 21.02.2017
Date of Decision: 27.02.2017
Bachni wife of Mr. Mukhtiar, resident of H.No. 353, Street No.4,
Ward No. 9, Dashmesh Nagar, Patiala Road, Sangrur through its
special power of attorney Salma daughter of Bikram, resident of
H.No. 353, Street No.4, Ward No.9, Dashmesh Nagar, Patiala Road,
Sangrur.
.....Appellant/Complainant
Versus
1. DHFL Pramerica Life Insurance Co. Ltd., Ist Floor, Dr. Mittal
Building Sunami Gate, Sangrur through its Branch Manager.
2. DHFL Pramerica Life Insurance Co. Ltd, 4th Floor, Building No.
9B, Cyber City, DLF City, Phase-III, Gurgaon 122002 through
its Managing Director
.....Respondents/Opposite parties
First Appeal against order dated
20.03.2015 passed by the District
Consumer Disputes Redressal Forum,
Sangrur
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri.Vinod Kumar Gupta, Member Present:-
For the appellant : Sh.Sanjeev Goyal, Advocate For the respondents : Sh. Karan Nehra, Advocate.
AND (2) First Appeal No.691 of 2015 Date of Institution: 29.06.2015 Order Reserved on:21.02.2017 Date of Decision: 27.02.2017 First Appeal No.495 of 2015 2
1. DHFL Pramerica Life Insurance Co. Ltd. (through its Branch Manager), First Floor, Dr. Mittal Building, Sunami Gate, Sangrur, Punjab.
2. DHFL Pramerica Life Insurance Co. Ltd, (Through its Managing Director), First Floor, Dr. Mittal Building, Sunami Gate, Sangrur, Punjab.
.....Appellants/Opposite parties Versus Mrs. Bachni wife of Mr. Mukhtiar, resident of H.No. 353, Street No.4, Ward No. 9, Dashmesh Nagar, Patiala road, Sangrur, Punjab ..Respondent/Complainant First Appeal against order dated 20.03.2015 passed by the District Consumer Disputes Redressal Forum, Sangrur Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri. Vinod Kumar Gupta, Member Present:-
For appellants : Sh.Karan Mehra, Advocate
For respondents : Sh. Sanjeev Goyal, Advocate
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
By this common judgment, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order dated 20.03.2015 of District Consumer Disputes Redressal Forum Sangrur and, thus, can be disposed of together. The order shall be pronounced by us in main First Appeal no.495 of 2015 as "Mrs.Bachni versus DHFL Pramerica Life Insurance Company Ltd."
2. First Appeal No. 495 of 2015 has been filed by the appellant for enhancement of amount of compensation as awarded by District First Appeal No.495 of 2015 3 Forum in above order dated 20.03.2015 arising out of complaint no. 561 of 2014. Second First Appeal No.691 of 2015 has been filed by appellants (the opposite parties in the complaint) against order dated 20.03.2015 of District Forum Sangrur directing them to pay the amount of Rs.15 lacs to respondent of this appeal with interest @ 9% per annum, besides amount of Rs.20,000/- as compensation for mental harassment and Rs.10.000/- as cost of litigation.
3. Complainant Bachni has filed the present complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on the allurement of agent of OPs, her daughter took the policies by investing the amount with OPs. She was insured, vide policy no. 000187592 for a sum assured of Rs.15 lacs for the period from 30.11.2012 to 29.11.2027 with annual premium of Rs.1,50,000/-. The complainant was nominated as nominee under the said policy, as she was residing with her daughter. Unfortunately, her daughter who was insured died on 24.10.2013 at Sibia Hospital Sangrur due to heart attack. The complainant lodged insurance claim being nominee with OPs, but OPs refuted the same after passage of eight months, vide letter dated 25.06.2014 on the false ground that insured Krishna Devi was suffering from Bronchial Asthma and refunded the fund value of the policy through NEFT in the bank account of complainant only. The complainant and her son-in-law Bikram approached the OPs for releasing the claim amount, but to no effect. The complainant has, thus, filed complaint against OPs directing them to pay the insured amount of Rs.15 lacs with all other benefits and interest @ 18% per First Appeal No.495 of 2015 4 annum from the date of death till actual payment and Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as litigation expenses.
4. Upon notice, OPs appeared and filed written reply and contested the complaint no.561 of 2014 of the complainant vehemently. Preliminary objections were taken that complaint is false, malicious and malafide. The contract of insurance is based on utmost good faith and if any party under the Contract of Insurance concealed the material facts, then contract is rendered void at the side of the other. Any negligence and deficiency in service was denied by OPs in this case. Krishna Devi expressed her willingness to obtain the said policy after understanding all the terms and conditions thereof and duly signed the proposal form no.AF000576897 dated 22.11.2012. She answered the questionnaire pertaining to her health in the negative particularly with regard to Asthma, Bronchitis, Blood spiting, Tuberculosis or other Respiratory disorders. She replied to them in the negative in the proposal form. There is provision of declaration by the owner of the policy to the effect that she had read the application and furnished the information after understanding the contents thereof. The policy can be repudiated under Section 45 of the Insurance Act, 1938 in case of any concealment of material fact, which has been done by the concerned party. The fact of issuance of the insurance policy was admitted with benefits commencing from 30.11.2012 in favour of DLA. Under the said policy, a sum of Rs.1,50,000/- was to be paid annually for a period of five years and policy term was 15 years. First Appeal No.495 of 2015 5
Intimation was received regarding death claim of DLA on 02.12.2013 due to acute respiratory failure. The matter was investigated by Sakshi Investigation and Detective Agency, it found that DLA was suffering from Bronchial Asthma and had undergone treatment prior to the date of the application and she has stated false information regarding her condition by giving answer in negative regarding Asthma Bronchitis, Blood spitting, Tuberculosis or other Respiratory disorders. The DLA was under treatment much prior to signing of the proposal form for the above referred health problem. The DLA knowingly and fraudulently suppressed this material fact by giving answers in negative thereto. OPs refunded the fund value available in the policy account of DLA, vide NEFT dated 24.06.2014 for Rs.1,38,458.37 towards full and final settlement under the policy. The complaint was contested even on merits on the above-referred grounds and OPs precisely contested the complaint on account of suppression of material fact by DLA regarding Asthma Bronchitis, Blood spitting, Tuberculosis or other Respiratory disorders, which were pre existing diseases. Any deficiency in service on the part of OPs was vehemently denied and it prayed for dismissal of the complaint.
5. The complainant tendered in evidence, affidavits Ex.C-1 and Ex.C-2 along with copies of documents Ex.C-3 to Ex.C-10. As against it; OPs tendered in evidence copies of documents Ex.OP-1 to Ex.OP-7 and affidavit of Amit Raheja attorney of DHFL Pramerica Ex.OP-8. On conclusion of evidence and arguments, the District Forum Sangrur accepted the complaint of the complainant by virtue First Appeal No.495 of 2015 6 of order dated 20.03.2015. Aggrieved by the order of District Forum Sangrur dated 20.03.2015, two separate appeals have been preferred against the same in this case. First Appeal No.495 of 2015 has been filed by the complainant now appellant for enhancement of amount of compensation and second connected First Appeal No. 691 of 2015 has been filed by OPs as appellants challenging the validity of the order passed by District Forum. 6, We have heard Ld. Counsel for the parties at considerable length and have also examined the record of the case.
7. First point falling for consideration in this case, is whether insured Krishna Devi understood the terms and conditions of the policy document before signing them or not. The complainant contended before us that the terms and conditions of the proposal forms were in English and she could not understand it and her signatures in Punjabi leads to the inference that she did not understand the terms and conditions of the policy. Her signatures had been obtained by the OPs through its agent on them only. We have gone through the proposal form on the record. Proposal form Ex.OP-1 has been filled in English language and signatures on it are in Punjabi script by the insured Krishna Devi. The counsel for OPs submitted that there are also signatures of one Ram Singh on it to the effect that Krishna Insured duly understood the terms and conditions thereof before signing proposal form. We find that the particulars of Ram Singh have not been set out in it to make out as to who was Ram Singh and what was his parentage and complete address. There is nothing on the record as to how Ram Singh was First Appeal No.495 of 2015 7 related to Krishna Devi. Ram Singh had signed it in English and we cannot draw this conclusion on its basis that the terms and conditions were duly read over and explained and insured was made to understand them before signing the proposal form. The allegations of the complainant are that the agent of the OPs inveigled the insured to invest the amounts in the policies and we, find weightage in the submission of the complainant in this case that proposal forms have been filled in by the agent and mere signatures of insured in Punjabi script on it, all the same, when form was in English script, cannot lead us to draw this conclusion that she understood the terms and conditions thereof. On this point, we refer to law laid down by our State Commission in case titled as Life Insurance Corporation of India and another versus Raj Rani, reported in 2012(1) CLT 93, decided on 28.04.2011 that where LIC of India did not disclose the name of its agent or development officer, who filled the proposal form at the time of issuance of policies, hence, it is not proved that contents of the proposal forms were explained to insured by the agent concerned. The signatures of the insured were obtained on the blank proposal forms, where the tics were marked on it. The onus is on the insurer to prove that its agent had fully explained the contents of proposal form to the insured. In view of law laid down by this Commission (supra), we are in agreement with the submission of complainant that proposal form was not duly explained to the insured and it cannot be said that the insured filled the proposal form of her own voluntarily. This point is, First Appeal No.495 of 2015 8 thus, decided against the OPs and in favour of the complainant in this appeal.
8. The next point for adjudication, is whether there was variance in the age given by the insured in the voter list, as well as, in the pan card. The submission of the OPs before us is that policy stands cancelled on account of suppression of this material fact by insured with regard to her age at the time of taking the policy, whereupon payment of the quantity of the premium depends. It was submitted by OPs that DLA gave the pan card as a proof of her age, whereas in the voter card, age was found different. We find that pan card is more reliable document than electoral role. Electoral role are prepared in routine sometimes on hearsay basis alone. Estimated age of the voters, are recorded in the electoral role, which is not done precisely, and we do not find it a valid ground to repudiate the contract of insurance. Pan card carries more weightage with regard to authenticity of age of the insured in the voter card. The contention raised by OPs on this point before us is devoid of any merit in our opinion.
9. The last but not least and forceful submission of OPs in assailing the order of the District Forum is that insured Krishna Devi suffered from Bronchitis Asthma ailment before taking insurance policy and she suppressed this material information at the time of taking the policy fraudulently and thereby obtained the consent of the OPs by means of misrepresentation, resulting into invalidating the contract of insurance. The counsel for OPs strongly relied upon the treatment record of insured Krishna Devi issued by Sibia Hospital at First Appeal No.495 of 2015 9 Sangrur. The record in this regard relied upon by OPs is Ex.OP-5, the Indoor patient file bearing Bed No. 3 and date of admission is recorded in it as 18.05.2012 and discharged on 27.05.2012. The counsel for the complainant argued that the treatment record Ex.OP- 5 carries no weightage because, it is not signed by any doctor. We find that the record of alleged treatment at Sibia Health Care Center, Sangrur of Krishna Devi are the photocopies of the record only. There is no original record and primary evidence or authentic evidence thereof has been withheld by OPs. There are no signatures of doctor on Ex.OP-5 Indoor Patient File. The signatures of the doctor over the seal even do not exists. Seal impression of the doctor has been put on it without any signatures of the doctor. The indoor patient file at page no.197 bears the signature of Dr. Prabhjot Singh Sibia and they do not tally with the signature of the same doctor at page no.209 of the treatment record. They do not prima facie tally with each other on the record. There is no affidavit of doctor Dr. Prabjot Singh Sibia on the record that he treated Krishna Devi, who was a patient of Bronchitis Asthma disease even much prior to taking the policy. In the circumstances of the case, we are unable to place any reliance on this alleged treatment record, which is only photocopy without any signatures of the doctor and even signatures of the doctor do not appear to be identical at the first blush, wherever they existed with each other. The counsel for the OPs relied upon the final investigation report Ex.OP-4 on the record dated 30.12.2013. This is photocopy of the report of the investigator. There is no affidavit of investigator nor original report of the First Appeal No.495 of 2015 10 investigation has been placed on the record in this case. The investigator has not recorded the statement of the witnesses, whereupon this report was based nor they are part of the report. It is rather stated that doctor did not disclose about the disease and denied anything related to the disease of the insured. In this view of the matter, when the report of the investigator is not in original being not a primary evidence nor there is affidavit of the investigator to support it nor it is based on authenticated enquiry conducted by the investigator and hence we are unable to place any reliance on this report of the investigator. Even statement of Bikram dated 17.12.2013 on the file at page no.165, nowhere has proved that insured was suffering from previous ailment before taking the policy. We are fortified by law laid down by National Commission in SBI Life Insurance Co. Ltd versus Harvinder Kaur and another, reported in 2014(3) CPJ 552, wherein it has been held that only photocopy of discharge card relied upon by insurance company no affidavit of doctor has been filed, photocopy of discharge card rightly refused to be relied upon by Fora below with regard to point of concealing previous ailment. We also rely upon law laid down by National Commission in Kamla Devi versus LIC of India & others reported in 2016(2) CPJ 649 in this regard. We, thus, conclude that the onus is on the insurer to prove that insured was suffering from previous ailment and she fraudulently suppressed this material fact fraudulently rendering the contract of insurance as void under Section 45 of the Insurance Act. This fact that insured Krishna Devi was suffering from previous ailment of Bronchitis Asthma First Appeal No.495 of 2015 11 remained unproved on the record by the OPs. Consequently, OPs cannot repudiate the contract of insurance on that premise. The submission of counsel for the complainant is that panelled doctor of the OPs duly examined the DLA, when she took the insurance policy, the above doctor found no disorder in her health regarding Bronchitis Asthma, when she was medically examined. This fact goes a long way that panelled doctor of OPs examined the DLA, when she took the insurance policy and no such health disorder was detected in her at that time. This point also goes against OPs in this regard. The National Commission has also held in Bajaj Allianz Life Insurance Co. Ltd and others versus Raj Kumar, reported in 2014(3) CPJ 221 that authorized doctor of the insurance company had examined the insured, assessed fitness and after complete satisfaction, policy was issued. It cannot be presumed that insured was aware of multiple Meyloma/Blood Cancer and he deliberately concealed previous illness. This authority also buttresses the case of the complainant on the record that at the time of medical examination of insured by panelled doctor of OPs, there was no such disease in her.
10. Similarly, point raised by OPs is that there was no proof of income of insured, wherefrom she was to pay premium. Even OPs have not led any such evidence to prove it on the record that insured was not in a position to pay the premium. The onus lies on that party to prove the fact, which alleges it. The allegation of OPs remained unproved on the record in this regard in our opinion for want of any tenable evidence on the record. The complainant's side has not First Appeal No.495 of 2015 12 admitted this fact and OPs also failed to lead any such evidence on the record to substantiate this point.
11. The insured Krishna Devi paid premium during currency period of the policy to OPs. The complainant is nominee of the policy and is entitled to file the claim. The District Forum rightly held OPs deficient in service for repudiating the insurance claim. The complainant also preferred appeal that interest on the amount claimed be awarded from the date of filing the complaint. We find that the District Forum rightly exercised the discretion in this case in awarding interest on the claim amount from the date of complaint and we do not find any ground to interfere with the same because exercise of discretion by District Forum cannot be said to be arbitrary and unreasonable one in this regard.
12. As a result of our above discussion, there is no merit in both appeals i.e the "First Appeal No.495 of 2015 and First Appeal No.691 of 2015" and both of them stand dismissed accordingly.
13. In First Appeal No.691 of 2015, the appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of certified copy of this order. Remaining amount, if any, shall be paid to complainant by the appellants of this appeal, as per order of District Forum within 45 days from receipt of certified copy of this order.
14. Arguments in this appeal were heard on 21.02.2017 and the order was reserved. Now the order be communicated to the parties. First Appeal No.495 of 2015 13
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February 27, 2017.
(ravi)