State Consumer Disputes Redressal Commission
Aegon Religare Lic vs Poonam Jain on 3 April, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.215 of 2015
Date of Institution: 19.02.2015
Order reserved on:28.03.2017
Date of Decision : 03.04.2017
1. Aegon Religare Life Insurance Co. Ltd. through its authorized
signatory Mr. Jitin Parekh having its registered office at:
Building no.3, 3rd floor, Unit no.1, NESCO IT Park, Western
Express Highway, Goregaon (East), Mumbai 400 063.
2. Aegon Religare Life Insurance Co. Ltd. having its branch office
at: PUDA Complex, Ladowali Road, Jalandhar, Punjab.
.....Appellants/opposite parties
Versus
Poonam Jain W/o Late Sh. Vivek Jain, R/o Tilak Bhawan, Jail Road,
Mission Compound, Near Radha Swami Satsang Bhawan,
Jalandhar, Punjab.
.....Respondent/complainant
Appeal against order dated 16.12.2014
passed by the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Abhinandan Pandhi, Advocate For the respondent : Sh. Munish Goel, Advocate ............................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants have directed this appeal against order dated 16.12.2014 of District Consumer Disputes Redressal Forum, Jalandhar (in short the 'District Forum'), vide which, the complaint of the respondent of this appeal was accepted by directing OPs to pay Rs.20 lakhs to her alongwith interest @9% from the date of First Appeal No.215 of 2015 2 repudiation of her claim till the date of payment (the interest was granted by the District Forum as compensation), besides to pay Rs.3000/- as litigation expenses. The appellants of this appeal are the opposite parties and the respondent of this appeal is the complainant before the District Forum and they be referred as such hereinafter for the sake of convenience.
2. Complainant Poonam Jain instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on the allurement and inducement of OPs, Vivek Jain, her husband, purchased insurance policy from OPs for terms of 16 years against proposal dated 15.04.2010 for the sum assured of Rs.20 lakhs by paying initial premium of Rs.12,398/-. The proposal form was filled in through online by Vivek Jain DLA. After scrutinizing and verifying the particulars of proposal form, respective reports of agent and after fully satisfying with the health profile and habits, physical condition and insurability of life to be insured, the above proposal was accepted as standard life at ordinary rate of premium and OPs allotted policy no.510041178520. The DLA was also insured for the amount of Rs.1 crore with LIC of India and for an amount of Rs.11,58,790/- with Max New York Life Insurance Company Limited. No adverse circumstances were found against DLA with regard to his health and due to this reason, he was insured with high insured amounts with the above insurance companies. Vivek Jain insured died on 14.11.2010 due to cardiac arrest in natural way. The claim was lodged of above policy with OPs by the complainant after his demise. OPs repudiated the insurance claim First Appeal No.215 of 2015 3 lodged by her, vide letter dated 24.06.2011 without sending copy of proposal form dated 15.04.2010 and copy of policy document dated 21.05.2010. The alleged investigation report relied upon by the OPs was made the basis for repudiation of the claim in an unreasonable and unjustified manner. The OPs have not supplied the documents to complainant, which handicapped her from approaching appropriate Grievance Redressal Forum to seek Redressal of her grievance in this case. Complaint no.590 of 2012 was filed by complainant earlier, wherein direction was issued to OPs to supply the documents within 15 days by awarding an amount of Rs.2000/- as compensation and litigation expenses. The DLA was in good and perfect health condition, when he took the insurance policy from OPs without any adverse medical condition and any pre-existing disease. Even LIC of India paid the claim of Rs.1 crore regarding death of DLA and Max New York Life Insurance Company Limited also paid the claim amount to her after death of DLA Vivek Jain. It was further averred that DLA did not suffer from kochs, allergic, rhinitis, atopy, diabetes mellitus, essential hypertension, chronic cystitis; early BPH and had no prolonged treatment for them. He was not being treated with Tab Atcor, used in the treatment of hypertipidemia. DLA had not taken treatment in October 2008 from National Kidney Clinic and Research Centre. The allegations contained in repudiation letter by OPs are wrong. The complainant being legal representative of DLA Vivek Jain filed complaint directing OP to pay the insured amount of Rs.20 lakhs with interest @12% per annum, besides costs of proceedings Rs.20,000/- to her.
First Appeal No.215 of 2015 4
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that insurance claim of the complainant was repudiated in bonafide manner, after due application of mind because material facts have been suppressed in this case on the part of insured Vivek Jain. The complaint is alleged to be without cause of action. This fact was admitted that Vivek Jain since deceased took the insurance policy from OPs. The DLA Vivek Jain was suffering from Epigastric Hernia since last 11 years and underwent epigastrict hernia repair on 2.11.2000, with past history of pulmonary kochs in 1971, in the year 2003 and he had consulted for allergic rhinitis and was diagnosed as a case of atopy and was suffering from DM and running high BP in the year 2008-09. DLA approached the National Kidney Clinic and Research Centre in the year 2008 with complaints of low grade fever with dysuria. Investigation revealed creat. 1.4, USG kidney- prostrate-23.5 gms, residual urine- 5ml, cystocele F/U. He was diagnosed as case of essential hypertension, chronic cystitis, early BPH. He was also a known case of diabetes mellitus for which he has been taking regular medication since June 2003 from Sareen Hospital, Central Town Jalandhar. The DLA suppressed the material facts of his above ailments, when he took the above insurance policy from the answering OPs. The DLA gave wrong answers to questionnaire fielded to him by OPs with regard to his previous ailments, if any suffered by him. The contract of insurance is based on the principle of good faith and whosoever breaches this principle of good faith, renders the contract voidable at the option of the other. First Appeal No.215 of 2015 5 The complaint was also contested on the above referred grounds. The answering OPs prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavits Ex.C-A to Ex.C-D with copies of documents Ex.C-1 to C-15 and closed the evidence. As against it, OPs tendered in evidence affidavit Ex.OP- A/1 with documents Ex.OP-1 to Ex.OP-7 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant and passed the order, as above. Aggrieved by above order, the OPs, now appellants, have preferred 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. Undisputedly, Vivek Jain since DLA filled in the proposal form, which was accepted by OPs and thereby the contract of insurance came into existence between the insured and the insurer in this case. This fact is not in controversy in this case. The OPs repudiated the insurance claim of the complainant on the ground that DLA was suffering from Epigastric Hernia since last 11 years and underwent epigastrict hernia repair on 2.11.2000, with past history of pulmonary kochs in 1971, in the year 2003 and he had consulted for allergic rhinitis and was diagnosed as a case of atopy and was suffering from DM and running high BP in the year 2008-09 and DLA was also a known case of diabetes mellitus for which he has been taking regular medication since June 2003 from Sareen Hospital, Central Town Jalandhar. DLA was further diagnosed as a case of essential hypertension, chronic cystitis, early BPH and was on regular First Appeal No.215 of 2015 6 medication since September 2008. He replied the answers to the questionnaire of these diseases in negative, despite the fact that he was aware of these diseases. The complainant applied for documents under RTI Act, which fact is proved by Ex.C-2 and C-3 on the record. DLA was assured with Life Insurance Corporation of India under different policy as well, vide Ex.C-4 and C-5. Ex.C-7 to C-13 are the medical test reports of DLA Vivek Jain, which were got conducted by LIC of India and Ex.C-14 is the medical examiner's confidential report dated 05.12.2008, recording good health of DLA Vivek Jain. Ex.C-15 is the acceptance of the policy by LIC of India. The OPs repudiated the contract of insurance on the basis of above referred grounds. The OPs tendered in evidence affidavit of Manish Falor of OP. He also testified that DLA Vivek Jain was suffering from above referred diseases and he suppressed the above material information, when he filled in the proposal form by given wrong answers to the questionnaire and thereby the contract of insurance became void able at the option of the OPs. This witness has testified that since DLA suppressed the material information with regard to his ailments and he breached the principle of uberrima fides, whereupon the contract of insurance is founded and hence repudiated the claim, vide letter Ex.OP-7. Ex.OP-1 is the authority letter dated 06.05.2010. Ex.OP-2 is the photostat copy of prescription slip dated 12.06.2003 in the name of Vivek Jain issued by Dr. Davender Sareen of Sareen Hospital. Ex.OP-3 is the photostat copy of prescription slip of National Kidney Clinic & Research Centre issued by Dr. K.S. Chugh in the name of Vivek First Appeal No.215 of 2015 7 Jain. Ex.OP-4 is the kidney test report of Vivek Jain issued by Dr. Lal Path Labs Pvt. Ltd. Ex.OP-5 is the copy of proposal form of DLA Vivek Jain. Ex.OP-6 is the first premium receipt. Ex.OP-7 is the copy of repudiation letter.
6. We have carefully considered the above evidence on the record and also heard the respective submissions of both the learned counsel for the parties at considerable length. The point for adjudication in this appeal is whether it is a case of suppression material information by the DLA Vivek Jain, when he filled in the proposal form or not. The District Forum has not agreed with the argument of OPs on this point and recorded finding that OPs failed to prove that any material information has been concealed by the DLA. He filled in the proposal form for taking the insurance policy from OPs. We find that documents Ex.OP-2 to Ex.OP-4, which are the sheet-anchor of the case of the OPs with regard to suppression of material fact of previous ailments of DLA remained unproved on the record in this case. They are mere photostat copies of the prescription slips without any signature of the attending doctors of the hospitals on them. There are no affidavits of the doctors, who issued these prescription slips on the record to substantiate them. Even the original documents, which are the primary evidence has neither been produced nor sought to be summoned by the OPs in this case. The District Forum correctly relied upon law laid down by the National Commission in "SBI Life Insurance Co. Ltd. Versus Harveinder Kaur" III(2014)CPJ-552(NC) in this regard. We, thus, conclude that neither the original documents have been produced on First Appeal No.215 of 2015 8 record nor there is any affidavit of the doctor, who issued these documents and hence they remained unproved on the record being mere unsigned photostat copies. Ex.OP-2 is dated 12.06.2013, whereas the policy in this case was taken in the year 2010. Ex.OP-3 pertains to the year 1997 much time earlier to the policy. The District Forum correctly observed that pre-existing disease means disease, which was existing just before obtaining the policy or in close proximity thereto. We rely upon law laid down in "Oriental Insurance Co. Ltd. & another Vs. Mohinder Singh (Dr.), 2009(1) CLT 494 by State Commission of New Delhi in this regard. Ex.OP-2 is a document regarding allergic rhinitis to the DLA Vivek Jain. It cannot be said to be material disorder on account increasing pollution and or stress in atmosphere in the present circumstances, as such type of allergies afflict most of the population. It cannot be said to be any material disease. We find that the documents of OPs remained unproved on the record by OPs for the reasons recorded above. Even, most of the people suffer from hypertension without knowing this fact whether they suffered from it or not. We concur with the findings of the District Forum that there is no substantive evidence on the record adduced by the OPs in proving the fact of suppression of material information by the DLA, when he filled in the proposal form of the policy in dispute. The repudiation of the claim of insurance is not justified on such insubstantial and tenuous evidence. Law relied upon by the appellants in case "Satwant Kaur Sandhu Vs. New India Assurance Company Ltd." 2013(3) CPR (SC) 664, in case "P.C. Chacko and another Vs. Chairman, Life First Appeal No.215 of 2015 9 Insurance Corporation of India and others" 2008(3)CLT-380 and in case "Mithoolal Nayak Vs. Life Insurance Corporation of India" 1962 AIR-814 as laid down by the Apex Court and in case "Narinder Kaur Vs. LIC of India" 2012(3)CPJ(NC)-593 by the National Commission would not be applicable to the given circumstances of the case, because OPs could not prove the above fact of suppression of material information for want of substantial evidence on the record. On the other hand, our own State Commission has held in case titled as "Life Insurance Corporation of India Vs. Parmod Chander" 2001(1)CPC-37 that doctor appointed by the insurer for medical checkup did not mention about such disease at the time of filling up the proposal form and thereafter repudiated the insurance claim. The onus is strictly upon insurance company to prove that disease was actually and fraudulently concealed. Our own State Commission has held in case titled as "Aviva Life Insurance, Claim Department & others Vs. Sharanjit Kaur" IV(2014) CPJ124 (Punj.) that hypertension is life style disease easily controllable with conservative medicine. Most of the people do not know that they suffered from hypertension. It is not a case of concealment of material fact deliberately by insured, as held in the cited authority. We find force in law laid down by our own State Commission in case titled as "United India Insurance Company Limited & another Vs. Dharam Dev Verma" 2011(1) CPC-77.
7. As a result of our above discussion, we find no illegality or material infirmity in the order of the District Forum under challenge in this appeal. The order of the District Forum is, thus, affirmed in First Appeal No.215 of 2015 10 this appeal. We find no merit in the appeal and the same is hereby dismissed.
8. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the registry to the respondent of this appeal, being complainant, by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellants of this appeal to the respondent of this appeal, as per order of the District Forum.
9. Arguments in this appeal were heard on 28.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
10. 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 April 03, 2017 MM