State Consumer Disputes Redressal Commission
Bharti Axa Life Insurance Co. vs Amrik Kaur on 1 September, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.341 of 2017
Date of Institution : 08.05.2017
Order Reserved on: 24.08.2017
Date of Decision : 01.09.2017
Bharti AXA Life Insurance Company Limited, SCO-4, Level-2,
Nagpal Towers-II, Circular Road, B-Block, Ranjit Avenue, Amritsar,
District Amritsar, through its Manager.
.....Appellant/opposite party
Versus
1. Amrik Kaur, aged 50 years, Wd/o of Jasbir Singh, S/o Arjan
Singh,
2. Sarabjit Kaur, Aged 28 years, D/o of Jasbir Singh, S/o Arjan
Singh,
3. Sukhpal Singh, Aged 27 years, S/o Jasbir Singh, S/o Arjan
Singh,
4. Lakhwinder Kaur, Aged 28 years, D/o Jasbir Singh, S/o Arjan
Singh,
All residents of Village Lokha, Tehsil Patti District Tarn Taran.
.....Respondents/complainants
First Appeal against order dated
27.03.2017 passed by the District
Consumer Disputes Redressal Forum,
Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. K.S. Cheema, Advocate For the respondents : Sh. Sukhandeep Singh, Advocate ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 27.03.2017 of District Consumer Disputes Redressal Forum Amritsar (in short the 'District Forum'), allowing the complaint of the respondents by directing appellant of this appeal to pay the insured First Appeal No.341 of 2017 2 amount of Rs.20 lakhs (twenty lakhs) to the respondents of this appeal in equal shares, within one month from the date of receipt of copy of the order failing which the respondents shall be entitled to interest @ 6% per annum on this amount from the date of filing of the complaint till actual payment. Appellant was further directed to pay litigation expenses to them to the tune of Rs.2000/-.
Respondents of this appeal are complainants in the complaint before the District Forum and appellant of this appeal is opposite party (OP) therein and they be referred as such, hereinafter for the sake of convenience.
2. The complainant instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that Jasbir Singh son of Arjan Singh, husband of complainant no.1 and father of complainant nos.2 to 4, was insured with OP for a sum of Rs.25 lacs under policy No.500-9142703 on 18.10.2012. Before taking the life insurance policy, OP got him medically examined and only thereafter, the insurance policy was released to him. The complainants filed death claim with OP after death of Jasbir Singh assured. The OP repudiated the contract of insurance on the ground of suppression of his pre-existing disease by him. The hospitalization of assured in the year 2012 in Sri Guru Ram Dass Charitable, Vallah, Amritsar was minor in nature, which was not material for repudiating the contract of insurance at all. Assured Jasbir Singh died on 03.11.2012, leaving behind the complainants as his legal heirs. The complainants alleged deficiency First Appeal No.341 of 2017 3 in service and unfair trade practice on the part of OP on account of repudiation of contract of insurance on account of alleged suppression of material fact of his pre-existing disease. The assured got intestine problem only and was admitted in above hospital and he concealed nothing material from OP and it was minor problem only. The complainants prayed that OP be directed to release the whole death claim amount to the tune of Rs.20 lacs on account of death of insured Jasbir Singh alongwith interest at the rate of 18% per annum, besides Rs.1,00,000/- as compensation for mental and physical harassment caused to them and litigation expenses of Rs.25,000/-.
3. Upon notice, OP appeared and filed written reply and contested the complaint raising preliminary objections that after understanding the key features of the policy, the insured had signed and submitted the proposal form for insurance and based on the information provided by the insured in the documents furnished at the proposal stage including proposal form, the benefit illustrations and others, OP issued the policy on the life of the insured. It was further averred that in column No.7 of proposal form, the information was sought in respect of past medical history, consultation with doctor, medication, medical advice, disease etc. and hospitalization within the preceding five years of the life insured and he answered in the negative to all the said questions and based on his said response, OP issued the policy to him on 31.10.2012. The life assured died on 03.11.2012 i.e. within 3 days from the date of First Appeal No.341 of 2017 4 issuance of the policy. The death claim was received by OP on 23.04.2014 and the matter was investigated. The complainants deliberately delayed in filing of the claim in order to deceive the OP company, so that the matter could not be promptly investigated and thereby the records got old. During investigation, it was found that the life insured was hospitalized at Sri Guru Ram Dass Hospital from 06.09.2012 to 07.09.2012 with complaint of abdominal pain for the past one and half months. During the said hospitalization, the life insured underwent diagnostic laparoscopy biopsy taken from his intestinal mass. It was also noted that mild ascites with jejunal mass at 3 places. He had also got done histopathology through SRL diagnostics and the report is dated 15.09.2012 mentioning necrotising acute on chronic inflammatory pathology and also suggested further tests under the said report. This medical history, hospitalization and tests were just prior to the filing of the proposal form for the above policy by life insured Jasbir Singh and the answers furnished by him were thus false and the insured gave false and misleading information to OP to secure the contract of insurance. Accordingly, OP repudiated the claim lodged by the complainants for non-disclosure/ suppression of material information by way of claim repudiation letter dated 16.07.2014. The complaint was contested even on merits by OP on the above referred grounds. The OP controverted the other averments of the complainant and prayed for dismissal of the complaint.
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4. The complainants tendered in evidence affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-3 and closed the evidence. To rebut the evidence of the complainants, OP tendered in evidence the affidavit of Sh.Sunita Yadav, Ex.OP-1 alongwith copies of documents Ex.OP-2 to Ex.OP-6 and closed the evidence on behalf of OP. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainants, as referred to above. Aggrieved by above order, OP now appellant has directed this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The solitary point arising for adjudication before us in this appeal is whether life assured suppressed the material information with regard to his pre-existing disease or his hospitalization by giving wrong answers in the proposal form thereby making the contract of insurance as voidable at the option of the other. The point for adjudication is also as to whether OP is justified in repudiating the contract of insurance on account of above suppression of material information by life assured or not. The dispute can be decided with the aid of evidence on the record by us. Complainant no.1 Amrik Kaur tendered in evidence her affidavit Ex.C-1. She deposed on oath regarding taking of policy by her husband Jasbir Singh DLA. She further stated that DLA got intestine problem and was got admitted in Sir Guru Ram Dass Charitable Hospital, Vallah, Amritsar and it was minor in nature, which was not material for repudiating the contract First Appeal No.341 of 2017 6 of insurance. Assured Jasbir Singh died on 03.11.2012, leaving behind the complainants as legal heirs. She further deposed that minor disease is no ground to repudiate the contract of insurance. She termed the repudiation of contract of insurance as arbitrary and unjustified. Ex.C-2 of copy of death certificate of Jasbir Singh life assured. Ex.C-3 is the claim repudiation letter from OP to complainant no.1 on account of supply of material information wrongly by DLA to OP in the proposal form. The OP tendered in evidence affidavit of Sunita Yadav, Associate Manager-Legal of OP. She testified in her affidavit that Jasbir Singh life assure filled in proposal form before taking the insurance policy and he concealed the fact of his pre-existing disease and his hospitalization by withholding the material information from OP in the proposal form. He rendered the contract of insurance voidable at the option of the OP. She has proved that complainants lodged insurance claim, vide Ex.OP-4 with OP. She further deposed that policy was issued to DLA on 31.10.2012 and he died on 03.11.2012 just within three days from the date of issuance of the policy. She further deposed that the claim has been rejected on account of material suppression of the facts by DLA. Ex.OP-2 is the copy of proposal form containing questionnaire put to the proposer by the OP before issuing the policy to him. Question no.1 was whether within the past five years, have you consulted any doctor or other health practitioner except for common cold, influenza lasting less than four days. Question no.3(f) was whether he suffered from any disorder of the digestive system, First Appeal No.341 of 2017 7 gallbladder or liver e.g. actual or suspected gastric or duodenal ulcer, etc., as detailed in it. Jasbir Singh life assured gave the answers to the above questionnaire in the proposal form to OP in the negative. The OP relied upon Ex.OP-5, the discharge summary of Jasbir Singh of the Department of Gastroenterology for the period from 06.09.2012 to 07.09.2012. The chief complaint was pain in abdomen for one and half month. He was hospitalized and his biopsy from intestinal (Jezenal mass) done on 06.09.2012. It is recorded in procedure notes "findings:- Mild ascites with Juzenal Mass at three places". He was discharged in satisfactory condition. In this discharge summary name of hospital is not mentioned nor it is the attested copy of the original record. It is mere photostat copy produced by OP on the record. Ex.OP-6 is the claim repudiation letter.
6. Undoubtedly, it has appeared on the record that Jasbir Singh DLA suffered routine type minor problem in abdomen for which he took treatment from above said hospital at Amritsar, although the discharge summary Ex.OP-5 is unattested document without any signatures of the doctor on it. The OP repudiated the claim of complainant on the above ground. As per Section 45 of Insurance Act, 1938, the information suppressed by the assured should be material in nature which should be withheld deliberately and fraudulently. If the information withheld is not material in nature, then it would not render the contract of insurance as voidable. The photostat copy of discharge summary is Ex.OP-5 relied upon by OP, First Appeal No.341 of 2017 8 we cannot reach the conclusion that it is of any consequence. It is not signed by any doctor nor it is attested copy by any hospital, from which it was obtained by OP. It is plain Photostat copy of document only, on which no reliance can be placed by us as the name of the hospital is also not recorded on it. The OP failed to prove that the health disorder, wherefrom life assured suffered was material in nature sufficient to repudiate the contract. The discharge summary, which is photostat copy and unsigned by any doctor or deceased without mentioning name of any hospital is inconsequential in proving that he suffered from any such pre-existing disorder, which was material to be disclosed by him in the proposal form and thereby he suppressed the same from OP fraudulently. There is only affidavit of Sunita Yadav Associate Manager-Legal, who has got no first hand information of the matter and deposed only on the basis of information received.
7. As held by the Apex Court in case "P. Vankat Naidu Vs. Life Insurance Corporation of India and another" 2011(4)CPJ-6, that it is for the insurer to prove that diseased did not disclose correct facts relating to his illness. It is for the insurer to produce cogent evidence to prove the allegation. The counsel for the appellant relied upon law laid down by this Commission in first appeal no.723 of 2012 titled as "Madhu Vs. ICICI Prudential Life Insurance Co. Ltd. and another" decided on 23.11.2015 and in case "ICICI Prudential Life Insurance Company Limited & another Vs. Smt. Kuldeep Kaur" in first appeal no.1106 of 2011 decided on First Appeal No.341 of 2017 9 12.08.2015. We find that the cited authorities would not be attracted in this case by the appellant because neither any health disorder wherefrom complainant suffered has been proved on record by OP nor withheld information which was material in nature, as required by Section 45 of Insurance Act, 1938. The OP also failed to prove that life assured himself was aware of any such disorder and he knowingly suppressed the same from OP in a fraudulent manner. It is not established on record by OP that life assured died on account of any disease, as mentioned in the alleged discharge summary and proposal form. The discharge summary, thus, remained legally unproved on the record, being neither signed by any doctor nor attested by any hospital from which it was obtained.
8. As a result of our above discussion, we find no illegality or material infirmity in the order of the District Forum calling for any interference therein. We find no merit in the appeal and the same is hereby dismissed.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited the amount of Rs.13,76,400/- in compliance with order of this Commission. These amounts with interest, which accrued thereupon, if any, be remitted by the registry to respondents of this appeal, being complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay order, if any.
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10. Arguments in this appeal were heard on 24.08.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER September 01, 2017 MM