State Consumer Disputes Redressal Commission
Smt.Pushpa Patel vs Hdfc Standerd Life Insurance Co.Ltd. & ... on 24 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/61
Instituted on : 31.07.2017
Smt. Pushpa Patel, Aged 37 years,
W/o Late Suresh Kumar Patel,
Address : Kotra Road, Savitri Nagar,
Raigarh (C.G.) ... Complainant.
Vs.
1. H.D.F.C. Standard Life Insurance Company Ltd.,
Through : Branch Manager,
Address : Second Floor, Pujari Chamber,
Block B, Dhamtari Road, Pachpedi Naka,
Raipur (C.G.)
2. H.D.F.C. Standard Life Insurance Company Ltd.,
Through : Authorised Person,
Lodha Excelus, 13th Floor, Apollo Mills Compound,
N.M. Joshi Marg, Mahalaxmi,
Mumbai 400011 ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES: -
Shri S. Pandya, Advocate for the complainant.
Shri Sanjay Tiwari, Advocate for the OPs.
ORDER
Dated : 24/February/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :
// 2 //
(a) To direct the OPs to jointly and severally pay the sum assured Rs.50,00,000/- (Rupees Fifty Lakhs) along with interest @ 18% p.a., to the complainant.
(b) To direct the OPs to pay a sum of Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony to the complainant.
2. Brief facts of the complaint of the complainant are that the husband of the complainant Late Shri Suresh Kumar Patel obtained an Insurance Policy No.17829624 on 30.09.2015 from the OPs, which was issued for the period of 10 years. The annual premium of the policy was Rs.9,013. The Sum Assured under the above policy was Rs.50,00,000/-. In the above insurance policy, the complainant Smt. Pushpa Patel was made nominee by the life assured. After 8 months of obtaining insurance policy, all of sudden Suresh Kumar Patel fell ill and was got admitted in Smt. Asrafi Devi Women's Hospital, Raigarh on 23.05.2016. In the above hospital, without any examination, it was informed that he was suffering from HIV Positive. When deceased Suresh Kumar Patel was not cured, he was discharged from the above hospital on 27.05.2016 and he was referred to Ramkrishna Care Hospital, Raipur. On 27.05.2016, Suresh Kumar Patel was got admitted in Ramkrishna Care Hospital, Raipur where his treatment was continue. On 06.07.2016, Suresh Kumar died. For the first time Suresh Kumar got admitted in the hospital from 27.05.2016 to 20.06.2016 and // 3 // thereafter he was got admitted in the hospital from 29.06.2016 to 05.07.2016. Suresh Kumar died due to Cardio Pulmonary Arrest. After death of the insured policyholder, the complainant submitted death claim before the Insurance Company at Raigarh in respect of Policy No.17829624. After submitting claim form, Dr. I. Rahman filled up the Dr. Certificate From of HDFC Standard Life Insurance Company Limited. In the above form, it is mentioned that the deceased Suresh Kumar Patel was only suffering from fever, headache, weakness, vomiting and G.T.C.S. and it is mentioned that "History provided and recorded by - No previous chronic - illness and the deceased was diagnosed for Seropositive Meningitis G.T.C.S. The above doctor in his record nowhere found that the deceased was suffering from HIV Positive. The claim of the complainant was repudiated by the Insurance Company on 28.12.2016 on the ground that the deceased life assured gave answer in Sl. No.28, 30, and 31 in " No" whereas the deceased Suresh Kumar Patel was suffering from HIV / Aids, means that prior to obtaining insurance policy, deceased Suresh Kumar Patel was suffering from HIV/Aids and prior to five years of issuance of policy, he was hospitalised and his operation was done or he was directed to undergoing operation or hospitalization. After receiving repudiation letter, the complainant sent a letter to the Claim Review Committee, who did not allow the claim of the complainant and the claim of the complainant was rejected by the OPs on the ground that // 4 // the deceased life assured Suresh Kumar Patel was suffering from HIV Positive, whereas he was not having HIV Positive. The deceased life assured was not having knowledge that he is having HIV Positive and hed he did not take any treatment regarding the above disease prior to obtaining insurance policy from the OPs. The life assured was not hospitalised for the treatment of above disease and he was not recommended for hospitalization, therefore, the life assured gave the answers in "No". If the life assured was having knowledge regarding the above disease, then he would have given answer in "Yes". Therefore, it can be safely held that the deceased life assured did not suppress regarding the above disease and the OPs have erroneously repudiated the claim of the complainant. Dr. I. Rahman gave a certificate that there is no document to prove that deceased life assured Suresh Kumar Patel, was suffering from Seropositive since 2011. In the above Certificate, Dr. I. Rahman, who treated the deceased Suresh Patel and prepared discharge summary, had mentioned Seropositive since 2011 only on the sayings of the attendant, which is erroneous and it was accepted by Dr. I. Rahman and for correcting mistake, he provided above certificate. The life assured / deceased Suresh Kumar Patel was not having information that he is having HIV Aid. If he was suffering from above disease prior to 30.09.2015, even then he was not having knowledge regarding the same, and the same does not come in the category of suppression of the disease. If the life assured was // 5 // having HIV / AIDs on 30.09.2015 then there is no documentary evidence for the same. For the first time on 23.05.2016 in the hospital of Raigarh, the above disease was found, but no documentary evidence was available to them. Without documentary evidence, the hospital mentioned regarding the above disease. The life assured / deceased Suresh Kumar was not suffering from above disease prior to obtaining the insurance policy, on the above basis the claim of the nominee was liable to be accepted, but by repudiating claim, the O.P. committed deficiency in service. In August, 2016, the OPs have taken his Biochemistry, Urine, HIV report and their doctor examined deceased Suresh Kumar Patel and thereafter gave proof that he was not having any disease. Hence the instant complaint.
3. The OPs have filed their written statement and averred that Life Insurance contract is based on Principle of Utmost Good Faith. In all the instances it is believed that the life assured has disclosed all the known facts correctly in the proposal form and medical examination report, if any . The ultimate responsibility lies on the life assured to provide correct information and the Company requests the life assured to inform to it immediately if there is any discrepancy in the policy documents or the proposal form so that the same can be corrected in the company records but the complainant failed to do so and there lies Unconcluded Contract and suppression of material facts. The insurance is a matter of solicitation, in the present case, the policy was // 6 // issued only after explaining the features of the plan to the complainant and the complainant after understanding all the features of the policy has signed the proposal form. The policy documents of the policy were duly dispatched and delivered to the correspondence address provided in the proposal forms and the same has also not been disputed by the complainant in her complaint. The details with regard to Policy No.17829624 are not denied. However, as far as opting for Policy No.17829624 is concerned the same was opted by the complainant after filling up the proposal form for 10 years at annual premium of Rs.9,013/- (Rupees Nine Thousand and Thirteen Only), against the sum assured of Rs.50,00,000 (Rupees Fifty Lakhs) against which the policy was issued on 30.09.2015. The complainant was granted as nominee of the policy holder according to Part B Clause 16 of the LIC Policy. The complainant failed to disclose to the OPs that complainant's husband was tested HIV Positive on 23.05.2016 and the policy was issued based upon clause 28, 30, 31 of the Proposal Form submitted by the life assured towards Policy No.17829624. The complainant's husband died on 06.07.2016 and according to doctor's report the death was due to Cardiopulmonary arrest, but it is also not denied that complainant's husband was not suffering from Seropositive Meningitis and he was under treatment in Smt. Ashrafi Devi Women's Hospital Raigarh. As per the matter of fact, the claim was repudiated on the basis of non-disclosure of material fact with regard to clause 28, // 7 // 30, 31 of the policy form. In the terms and conditions provided to the complainant while issuing of the policy, it is clearly mentioned that the policy will be repudiated if there will be any suppression of the material facts related to occupation, age, health and income. There was suppression of fact regarding the health of the life assured that he was suffering from Seropositive Meningitis, which life assured failed to disclose to the OPs. Therefore, the claim for the said policy was repudiated on suppression of material fact related to health of the life assured. The life assured has never disclosed the true facts of the health condition as on 23.05.2016 and he was under treatment in hospital for five years prior to the policy issuance and also on the ground of the answer "No" to the Section 28,30 and 31 in the said policy application. The act of the life insured also violated the said application. The complainant had information regarding the health condition of her husband. OPs deny Certificate dated 01.08.2016 to which the complainant rely as proof issued by Dr. I. Rahman in which it is stated that there is no documents produced by the attendant at the time of admission that the patient has Seropositive which is issued after the death of the life insured dated 06.07.2016. The complainant has information that her husband is suffering from HIV and did not disclose the true facts of the health condition of her husband. The life insured had been suffering from Seropositive and intentionally concealed the true facts of the disease on which basis the claim was // 8 // repudiated. The said Doctor, Dr. I. Rahman (MD) of Ram Krishna Care Hospital has himself said in his certificate dated 01.08.2016 that no documentary evidence produced by attendant at the time of admission. The patient had seropositive since 2011, which goes to show that the doctor also accepted that the patient had seropositive since 2011 and nowhere any denial has been made by the doctor. The OPs deny that they have any report regarding Biometric, Urine, HIV etc. on 23.08.2015 with the OPs and since after termination of the policy application dated 23.12.2016, the complainant moved to Claim Review Committee and there also they refused to grant the complainant claim mentioning the same reason that the complainant's husband has suppressed the material facts, which repudiates the claim. It is now established fact that any such false assurance if any were ever made by any of the OPs, they are liable in their individual capacity, O.P. company has issued the policies based on the declarations made in the Proposal Form along with First Premium Receipt, captioned policy was issued along with relevant terms and conditions, which are binding upon the company as it is a contract between the complainant and the OPs company. The burden for proving that the Life Assured was not suffering from any ailment at the time of the inception of the policy is on the complainant and the OPs have repudiated the claim on the basis of the medical evidences submitted by the complainant at the time of the claim of the policy in question and after getting the same investigated and also // 9 // after going through the medical records submitted, the said fact of the ailment of deceased life assured and the certificate given by his treating doctor that he was suffering from Seropositive since 2011 and relying on the said medical certificate and discharge summary, the OPs have repudiated the claim of the complainant. The decision of OPs for repudiating the claim of the complainant is based on the medical evidences submitted at the time of the claim and the same found during the curse of investigation, which clearly proves the malice intentions of the deceased life assured, who was fully aware of his ailments and he knowingly and deliberately purchased the policy from the insurance company without disclosing the correct health status, which amounted to material non-disclosure, had he disclosed the same, then it was the discretion of the company to give him insurance cover or deny the same but by concealing the said correct status of his health , the deceased life assured has breached the terms and conditions of the policy in question and consequently the claim has been repudiated by the company. The complainant has failed to prove any deficiency in service against the OPs and the complaint filed by the complainant is devoid of merits and the same deserves to be dismissed with cost.
4. The complainant has filed documents. Annexure A-1 is photocopy of the insurance policy No.17829624, Annexure A-2 is Discharge Ticket of Asrafi Devi Women's Hospital, Raigarh (C.G.), Annexure A-3 is Discharge Summary of Ramkrishna Care Hospital, // 10 // Raipur, Annexure A/4 is Certificate of cause of death of Suresh Patel, Annexure A/5 is Doctor's Certificate, Annexure A/6 is letter dated 28.12.2016 sent by the Insurance Company to the complainant, Annexure A/7 is letter dated 20.01.2017 sent by the complainant before the Claim Review Committee, HDFC Standard Life Insurance Co. Ltd. Mumbai, Annexure A/8 is letter dated 25.04.2017 sent by HDFC Life Standard Insurance Company Limited to the complainant, Annexure A-9 is Certificate dated 01.08.2016 issued by Dr. I. Rahman, Annexure A/10 is letter dated 23.08.2015 sent by the H.D.F.C. Standard Life Insurance Company Limited to Suresh Kumar Patel.
5. The OPs have filed documents. Annexure N-1 is Proposal Form of Suresh Patel, Annexure N-2 is Graphical Report, Annexure N-3 is Medical Exam. Report, Annexure N-4 is Form of identity for special reports, Annexure N-5 is Aadhaar Card : ID proof.
6. Shri S.Pandya, learned counsel appearing for the complainant has argued that the husband of the complainant Late Suresh Kumar Patel obtained insurance policy No.17829624 on 30.09.2015 from the OPs for the period of 10 years. The sum assured was Rs.50,00,000/- and the premium of the insurance policy is annual of Rs.9,013/-. The complainant Smt. Pushpa Patel was made nominee by the life assured. After 8 months of obtaining insurance policy, all of sudden deceased life assured Suresh Kumar Patel fell ill and was got admitted in Smt. Asrafi Devi Women's Hospital, Raigarh on 23.05.2016 and thereafter he // 11 // was referred to Ram Krishna Care Hospital, Raipur where he died on 06.07.2016. For the first time, deceased life assured got admitted in the hospital from 27.05.2016 to 20.06.2016 and thereafter he was got admitted in the hospital from 29.06.2016 to 05.07.2016. Deceased life assured died due to Cardio Pulmonary Arrest. HIV Positive was not detected earlier and the deceased life assured was not suffer from any disease. The deceased life assured was only suffering from fever, headache, weakness, vomiting/nausea and G.T.C.S. No previous chronic illness and the deceased was diagnosed for Seropositive Meningitis by any doctor. The complainant submitted her claim before the OPs, but the OPs repudiated the claim of the complainant on false ground. The deceased life assured had never suppressed his diseases and the information given by the deceased life assured is correct and he had not suppressed any material facts while obtaining insurance policy. The deceased life assured was not having knowledge regarding the above disease, therefore, it does not come in the category of suppression of information regarding previous disease. The OPs have wrongly repudiated the claim of the complainant. The complainant is entitled to get sum assured under the insurance policy. Therefore, the complaint of the complainant may be allowed and the reliefs as prayed by the complainant, as mentioned in the relief clause of the complaint, be granted to the complainant. He placed reliance on Ravinder Singh Bindra Vs. National Insurance Company Limited & // 12 // Ors. I (2017) CPJ 498 (NC); Branch Manager & Anr. Vs. Laxman Swaroop 2013 (1) CPR 264 (NC); New India Assurance Co. Ltd. & Anr. Vs. Murari Lal Bhusri, III (2011) CPJ 198 (NC); The New India Assurance Co. Ltd. & Ors. Vs. Chandra Kumar Chatrath & Anr. 2013 (1) CPR 250 (NC); Life Insurance Corp. of India & Anr. Vs. Ashok Manocha, III (2011) CPJ 418 (NC); New India Assurance Co. Ltd. Through its Manager Vs. Mohinder Kaur Widow of Mohan Singh, 2013 (3) CPR 704 (NC); Smt. Sadhna Mishra and Others Vs. Life Insurance Corporation of India, decided by M.P. State Consumer Disputes Redressal Commission, Bhopal (M.P.) vide order dated 04.12.2015; LIC of India and Anr. Vs. Kolla Santhi and Anr. LAWS (NCD) 2016 1 129, Revision Petition No.1129 of 2010, decided by Hon'ble National Commission on 22.01.2016.
7. Shri Sanjay Tiwari, learned counsel appearing for the OPs has argued that the Life Insurance contract is based on Principle of Utmost Good Faith. In all the instances, it is believed that the life assured has disclosed ll the known facts correctly in the proposal form and medical examination report if any. The ultimate responsibility lies on the life assured to provide correct information. The deceased life assured failed to disclose correct information. Even the complainant did not disclose regarding the disease of the deceased life assured that he was suffering from HIV Positive. The policy was issued based upon Clause 28,30, 31 of the Proposal Form submitted by the deceased life // 13 // assured towards policy No.17829624. The deceased life assured died on 06.07.2016 and according to the doctor's report, the death was due to Cardio Pulmonary arrest, but it is also not denied that the deceased life assured was not suffering from Seropositive Meningitis and he ws under treatment in Smt. Ashrafi Devi Women's Hospital, Raigarh. The deceased life assured suppressed material facts, therefore, he violated the terms and conditions of the insurance policy. The OPs have rightly repudiated the claim of the complainant. The complainant is not entitled to get any compensation from the OPs. The complaint is liable to be dismissed. He placed reliance on Civil Appeal No.2776 of 2002 - Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. decided by Hon'ble Supreme Court on 10thJuly, 2009.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by them in the complaint case.
9. It is not disputed that deceased Suresh Kumar Patel obtained Insurance Policy No.17829624 on 30.09.2015 from the OPs for 10 years and the sum assured is Rs.50,00,000/-. The annual premium is Rs.9,013/- . After 8 months of obtaining the above insurance policy.
10. According to the complainant, deceased life assured Suresh Kumar Pateel, all of sudden fell ill and was got admitted in Ashrafi Devi Women's Hospital, Raigarh on 23.05.2016, where it was diagnosed // 14 // that the deceased life assured was suffering from HIV Positive and he was discharged from the above hospital on 27.05.2016 vide discharge summary Annexure A/2. Thereafter Suresh Kumar Patel was got admitted in Ramkrishna Care Hospitals, Raipur on 27.05.2016, where during treatment he died on 06.07.2016. According to the complainant, Dr. I. Rahman gave a Certificate in which it is not mentioned that deceased life assured was suffering from any previous chronic illness and he simply mentioned that deceased life assured was suffering from fever, headache, weakness, vomiting/ nausea and G.T.C.S.. The said doctor did not mention in his report regarding Seropositive Meningitis , therefore, it cannot held that the deceased life assured had suppressed material facts.
11. The OPs have filed document Annexure N-1 which is Proposal Form submitted by the deceased life assured and policy documents. In proposal form, the questions have been asked from the deceased life assured regarding his health and the answers of the questions have been given by the deceased life assured, which are as under :-
" Personal Details of the life to be assured
22. Have you ever suffered from Diabetes/high blood No. sugar /Sugar in urine / High Blood Pressure/ Hypertension/ Heart disease stroke.
23. Have you ever suffered from Respiratory disorders, No. Arthritis Back Problem, Tuberculosis, Any recurrent medical condition disability (including eye/ear disorder).
// 15 // 28 Have you ever been tested positive for HIV/AIDS No or Hepatitis B or C or have you been tested / treated for other sexually transmitted disease or are you awaiting result of such a test.
30 During last five years have you undergone or been No. recommended to undergo hospitalization.
31 During last five year have you undergone or been No. recommended to undergo operation.
In reply to above question, the deceased life assured gave reply of all above questions in negative Form i.e. No.
12. The OPs have filed document Annexure N-3 which is Medical Examiner's Report, in which under Personal History Column, questions were asked from the deceased life assured regarding the diseases and all questions were replied by him in negative i.e. "No" and tick was marked in column of No. It appears that in reply to question regarding the sufferance of the diseases mentioned in the Medical Examiner's Report, their answers was given by the deceased life assured in negative form i.e. "No.".
13. 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 // 16 // 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.
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 // 17 // 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."
14 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."
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.
// 18 //
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 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. 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 obtained by the deceased after deposit of the premium, only such terms and conditions were printed.
// 19 //
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."
17. 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 // 20 // 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 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, // 21 // 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 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."
// 22 //
18. In Branch Manager, LIC Of India Vs. Jyothi Sudhir, 2016 (4) CPR 471(NC), decided on 20.10.2016, Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986-Sections 15,17,19 and 21-Insurance Act, 1938-Section 45- Insurance- Repudiation of death claim on ground of suppression of pre-existing disease-Any fact which goes to root of contract of insurance and has a bearing on risk involved would be material. Had assured disclosed that he was suffering from Hypertension and Diabetes Mellitus, Corporation would have asked for special medical reports which would have been placed before a medical referee and based upon report of medical referee, decision would have been taken whether to accept proposal or not- False or inaccurate statement by assured was on a material aspect which influenced decision of insurer on whether to accept proposal or not. Insurer was justified in repudiating claim on account of false statement made by assured in proposal form."
19. In Sunita Goyal Vs. Bajaj Allianz Life Insurance Co. Ltd. & anr., 2018 (1) CLT 63 (NC), decided on 07.09. 2017, Hon'ble National Commission, has observed thus "13. It is clear from the facts and circumstances of the case that suffering from diabetes, hypertension etc. and getting treatment for ARF was a material fact which must be within the knowledge of the deceased policy holder. It was, therefore, the bound duty of the deceased to have disclosed these facts and for his failure to do so, he cannot take advantage of section 45 of Insurance Act, on the ground that the death took place after two years of obtaining the policy in question. Even after the lapse of two years of taking the policy, it was necessary to disclose information about the material facts before the Insurance Company.
14. It is a settled legal preposition that a contract of insurance is a contract of good faith 'uberrima fides'. As stated by the Hon'ble Supreme Court in "Life Insurance Corporation of India & Ors. vs. Asha Goel (Smt.) & Anr."(supra), every material fact must be disclosed otherwise, there is a good ground for rescission of the contract."
// 23 //
20. The complainant filed Annexure A/2 which is Discharge Ticket of Smt. Ashrafi Devi Women's Hospital, Raigarh. In the said Discharge Ticket, it is diagnosed that the deceased life assured was suffering from H.I.V. Positive. Annexure A/3 is Discharge Summary of Department of General Medicine of Ramkrishna Care Hosital, Raipur, issued by Dr. Sanjay Sharma (DM) Neurophysician in which, under the head Final Diagnosis, it is mentioned that Suresh Kumar Patel age 43 years was suffering from Sero Positive Meningitis, GTCS. It is further mentioned under the head history "GTCS, Fever with chills, Severe headache, generalized weakness, bodyache, vomiting since 15 days L/c/o. Seropositive since 2011". In the discharge summary the above facts were mentioned according to the information given by the patient or his/her relatives.
21. Annexure A/5 is Doctors Certificate in which it is mentioned thus :-
Date of first Symptoms/ Date of History
consultation/adm complaints commenceme provided and
ission nt of recorded by
symptoms /
complaints
DOA 27/05/16 Fever with chills, GTCS, Last 15 days No previous
DOD 0/06/16 sev. headache, weakness, of date of chronic
DOA 29/06/16 vomiting admission illness.
DOD 05/07/16
// 24 //
22. Annexure A/6 is letter dated 28.12.2016 sent by the OPs to the complainant, in which it is mentioned thus :-
"In this connection we refer to Section in the said Application, which deals with 'Personal Details of Life to be Assured : Part II' Under this Section the following relevant questions had been answered as incorrectly :
28 Have you ever been tested positive for HIV/AIDS No or Hepatitis B or C, or have you been tested / treated for other sexually transmitted disease or are you awaiting the result of such a test ?
30 During last 5 years, have you undergone or been No recommended to undergo hospitalization.
31. During last five years have you undergone or been No. recommended to undergo operation.
From investigations, it was established that the Life Assured was suffering from Retroviral Diseases prior to the policy issuance. This was not disclosed in the application dated August 18, 2015. Had this information been provided to the Company at the time of applying for the insurance policy, we would have declined the application."
23. It is settled principle of law that the contract of insurance is a contract uberrima fides and there must be complete good faith on the part of the life assured at the time of submitting proposal form for obtaining the policy and the assured is under a solemn obligation to make full disclosure of material facts with regard to his state of health // 25 // because the same was relevant for the insurer to decide as to whether the Insurance Policy is to be issued to the proposer or not.
24. In the instant case, the deceased life assured Suresh Kumar Patel had obtained insurance policy from the OPs and he was insured with the OPs. Deceased Life Assured submitted proposal form for and in the proposal form in reply to the questions asked regarding the pre- existing diseases, he gave answer in Negative Form i.e. "No." In the proposal form the deceased did not disclose the fact that he was suffering from Seropositive Meningitis, G.T.C.S. diseases, whereas he was suffering from above disease since 2011. The insurance policy was obtained by the deceased life assured on 30.09.2015. It appears that the deceased life assured was suffering from Seropositive Meningitis GTCS disease prior to obtaining the policy.
25. From bare perusal of medical treatment papers of the deceased life assured, it appears that the Deceased Life Assured Suresh Kumar Patel was suffering from HIV Positive and Seropositive Meningitis, , GTCS since 2011, but he did not disclose the above facts while making proposal statement and has violated the terms and conditions of the insurance policy, therefore, the OPs have rightly disallowed the claim of the complainant. The complainant is not entitled for insurable benefit under the insurance policy, therefore, the complainant is not entitled to get any amount from the OPs under the insurance policy. The facts of // 26 // the judgments cited by the complainant are quite distinguishable from the facts of the instant case, therefore, the same are not helpful to the complainant.
26. Therefore, the complaint filed by the complainant against the OPs, being devoid of any merit, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
24 /02/2018 24 /02/2018 24 /02/2018