State Consumer Disputes Redressal Commission
Mandar S/O Gopalkrishna Waghralkar+1 vs Kotak Mahindra Old Mutual ... on 2 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
Consumer Complaint No. CC/09/8
Mandar S/o Gopalkrishna Waghralkar,
R/o. Plot No. 47, West Samartha Nagar,
Nagpur-15.
........ Complainant(s)
Versus
Kotak Mahindra Old Mutual Life
Insurance Ltd., Through its Manager,
Bock No. 101/102, 1st Floor, Usha
Complex, Sardar Vallabhabhai Patel
Road, Kingsway, Nagpur-440 001.
....... Opponent(s)
Consumer Complaint No. CC/09/9
Smt. Ranjana Wd/o. Gopalkrishna Waghralkar,
R/o. Plot No. 47, West Samartha Nagar,
Nagpur-15.
........ Complainant(s)
Versus
Kotak Mahindra Old Mutual Life
Insurance Ltd., Through its Manager,
Bock No. 101/102, 1st Floor, Usha
Complex, Sardar Vallabhabhai Patel
Road, Kingsway, Nagpur-440 001.
....... Opponent(s)
BEFORE:
HON'ABLE MR. B.A. Shaikh, Judicial PRESIDING MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER PRESENT:
Adv. Mr. Nankani ......for the Complainant Adv. Mr.Vidyarthi ......for the Opponent Judgment (Delivered on 02/09/2013) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1.
These two complaints are being decided by this common order as common question of law and facts is involved in them. Both these complaints are filed against the same opposite parties (for short O.P.).
2. The common case of the complainants in both these complaints in brief is that the deceased Dr. Gopalkrushna Waghralkar was the father of one of the complainant Mandar who filed complaint No. CC/09/08 and husband of Ranjana who filed complaint No.CC/09/09. Said deceased Dr. Gopalkrushna Waghralkar, had obtained two policies under Kotak Smart Advantage and Kotak Advantage Platinum Plan from the O.P. insurance company and the sum assured was Rupees 1 crore in each of the said policy. The period of the said two policies was 16 years commencing from 15/03/2008 & 20/03/2008 respectively. Dr. Gopalkrushna Waghralkar was feeling fever periodically and hence he had undergone certain test to detect the disease. On 22/03/2008 he was admitted to Dr. Rajan Barowkar's Hospital in critical condition and died on 01/04/2008. Therefore, the aforesaid two complainants who are respectively the son and widow of the said Dr. Gopalkrushna Waghralkar, submitted claim proposal along with requisite documents to O.P. The O.P. repudiated their claim vide letter dated 29/07/2008 on the ground of non disclosure and suppression of material information. The said complainants then served legal notice dated 21/01/2009 to the O.P. But the O.P. declined to pay the claim to them, vide its reply dated 06/03/2009. Therefore, these two complainants filed aforesaid two complaints and they claimed sum assured of Rupees 1 crore in each of the complaint, from the O.P.
3. The O.P. appeared and filed written version separately in each of the complaint and thereby it resisted the said complaints. It raised preliminary objection that two separate complaints for the same cause of action are not tenable and the value of the claim of both complaints exceeds more than rupees one crore and hence only the National Commission has jurisdiction to entertain the complaints. It is also submitted that the complaints are bad for non joinder of necessary party as polices in dispute are in the name of Hindu Undivided Family (For short HUF) and all the members are HUF are not joined to the complaints. It admitted that the two policies were issued by it to the deceased Dr. Gopalkrushna Waghralkar commencing from 15/03/2008 and 20/03/2008 under the aforesaid plan and the sum assured under each of the said policy was Rupees one crore and Dr. Gopalkrushna Waghralkar died on 01/04/2008 and the claim proposals submitted to it by the complainants have been repudiated on the ground of non disclosure and suppression of material information. It is the case of O.P. in brief that the deceased Dr. Gopalkrushna Waghralkar was admitted to Aditiya Hospital for treatment on 22/03/2008 and he was diagnosed to have suffered from Hodgkins Lgmphoma, since last 4 months and had received six cycles of Chemotherapy for the same. His imaging studies were done prior to admission in that hospital. The said studies suggested his suffering from Interstitial Pulmonary Fibrosis with Interstitial Pneumonitis and his Arterial Blood Gas levels were suggestive of type-3 respiratory failure. As per medical summary of Mangeshkar Hospital he was a diagnosed case of Hodgkins Lympmhoma since December-2007 and he had received first cycle of Chemotherapy in Pune Hospital. He was having fever since October-2006 and was investigated outside, where the Bone Marrow report was negative. He was on Haematinacs and Steroids. He was receiving Chemotherapy cycles from January-2008 to March- 2008 at Dr. Anand Pathak's Hospital. However, he had suggested falsely in the proposal form while giving answer to the question of clause 11 (I) to (V) and he hided the truth and therefore, the O.P. was misled. He had stated in the proposal form that he was living a normal life. Due to suppression of true facts by him, the formal medical examination was carried over by panel of Doctors of O.P. The said panel of Doctors could not know about inherent diseases of Dr. Gopalkrushna Waghralkar. The policy documents show that policy will be forfeited if it is found that the statement made in the proposal of the insurance was inaccurate or false or not made in good faith or any material manner or fact was suppressed, then in that case the policy shall be void and all claims to any benefit under the policy shall cease and all monies that have been paid in consequence of the policies shall belong to the company. Therefore, the O.P. repudiated the claims of the complainants. Hence O.P. prayed that both the complaints may be dismissed.
4. The complainants filed rejoinder in response to the aforesaid written version filed by the O.P. It is submitted by the complainants in the same rejoinder that the proposal forms for obtaining policies were filled in by Shri Sudhir Deshpande, the agent of the O.P. in presence of the complainant and the said agent had not asked any medical history to the deceased Dr. Gopalkrushna Waghralkar and said agent had merely obtained signatures of Dr. Gopalkrushna Waghralkar on the said proposal forms. Dr. Gopalkrushna Waghralkar was examined by panel of doctors of the O.P. and the test namely ECG, Treadmill and Pathological test were also taken and Dr. Gopalkrushna Waghralkar was found fit and therefore, O.P. issued the policies. It is also submitted that deceased Gopalkrushna Waghralkar could not verify the contents of the proposal forms as their contents were printed in very small fonts. It is further stated in the said rejoinder of the complainants that Dr. Gopalkrushna Waghralkar had taken yellow fever vaccine at Mumbai as he was required to travel Keniya via South Africa and therefore, he had adverse reaction on his body and as his health started deteriorating, he took medical help for recovery. It is further stated in rejoinder that as Dr. Gopalkrushna Waghralkar was suffering from fever he had undergone pathological test, biopsy, Bone Marrow Test and C.T. Scan of his body and Dr. Chetan Deshmukh had diagnosed a disease namely Hodgkin Lymphoma (non cancer) but as he was getting fever, he had undergone Chemotherapy cycles at Nagpur in the hospital of Dr. Anand Pathak. The deceased Gopalkrushna Waghralkar was not diagnosed as cancer patient. Hodgkin Lymphoma is not a cancer. Complainants had supplied all medical papers to O.P. and same were not received by OP from concerned Doctors. The repudiation of claim is therefore illegal.
5. The complainant filed policy documents along with proposal forms, letter of repudiation issued by O.P., legal notice served to the O.P. and reply given by the O.P. to the complainants' Adv.
6. The O.P. produced the copies of documents relating to the investigation done by deceased Gopalkrushna Waghralkar at various hospitals and Laboratories. The O.P. also produced the copies of documents relating the medical treatment taken by the deceased from time to time, the copies of proposals forms, the copy of claim intimation forms submitted by the complainants claiming the sum assured under the aforesaid two policies, the copies of the letters of repudiation, statement of physician Namely Dr. Rajan Baorkar and death certificated issued by him and brief summary of treatment given to the deceased Gopalkrushna Waghralkar at Cancer Care Clinic and Hospital of Dr. Vyajhralkar, medical summary of Dinanath Mangeshkar Hospital and Research Center of Pune issued by Dr. Chetan Deshmukh, who is Consulting Medical Oncologist and affidavit of Dr. Samir S. Shah along with his opinion.
7. Advocates of both parties filed written notes of arguments. We have also heard them orally.
8. Following issues arise for our consideration. We also record our findings against them for the reasons given next there under.
Issues Findings.
i.
Whether this Commission has Jurisdiction to decide both the complaints?
Yes ii.
Whether both the complaints are bad in law for non joinder of necessary parties?
No. iii.
Whether the complainants have proved that there is deficiency in service provided by O.P. to them?
No. iv.
What order?
As per final order below.
Reasons As to issue No 1: -
9. Both these complaints are filed on the strength of two separate policies issued by O.P. to the deceased Gopalkrushna Waghralkar on different dates. Therefore, two separate complaints filed claiming sum assured separately under the said two policies are maintainable in law. Admittedly sum assured under each of the said polices is Rs. one crore and that the complainants in each of the complaint claimed said sum assured of Rupees 1 crore only. Therefore, this Commission has got pecuniary jurisdiction to decide both the said complaints. The issue no. 1 is therefore decided in affirmative.
As to issue No. 2:-
10. The complaints are filed by the Son and Widow of the deceased Gopalkrushna Waghralkar, the risk of whose life was covered under both the said policies. They are the legal representatives of the deceased Gopalkrushna Waghralkar. The O.P. has not shown as to who are the other legal representatives of the deceased Gopalkrushna Waghralkar. Hence we hold that as the complaints are filed by the legal representatives of the deceased Gopalkrushna Waghralkar, they not bad in law for non joinder of necessary party. Hence, the issue No. 2 is decided in negative.
As to issue No. 3 :-
11. The crucial question involved in both the complaints is as to whether the deceased Gopalkrushna Waghralkar suppressed material information as regards his medical history and ailment, while submitting proposal forms to the O.P. for obtaining the aforesaid two insurance policies from it. The Learned Advocate of the complainant submitted in this regard that the said proposal forms were filled in by a insurance agent/ advisor- Shri Sudhir Deshpande of the O.P. without taking medical history from the deceased Gopalkrushna Waghralkar and signature of deceased Gopalkrushna Waghralkar was obtained by him without giving information or explaining the contents of the said proposal forms. He also submitted that at that time the wife of the deceased Gopalkrushna Waghralkar was present and there upon the said advisor had taken the deceased Gopalkrushna Waghralkar for his medical examination to the panel of doctors of the O.P. who after his thorough examination found no such disease which is alleged by the O.P. Thus according to him the O.P. now cannot take the plea that the deceased Gopalkrushna Waghralkar was suffering from cancer. He further submitted that as the deceased Gopalkrushna Waghralkar got fever periodically, he had under gone different diagnostics tests in order to know the reason for that fever and on 22/03/2008 as condition of his health had become critical he was admitted to the Hospital of Dr. Rajankar and died on 01/04/2008. He also submitted that the proposal forms signed by the deceased Gopalkrushna Waghralkar are printed in very small fonts, which cannot be read easily by eyes of normal vision . He thus submitted that for these reasons the said proposal forms submitted by the O.P. cannot form basis for coming to the conclusion that the deceased Gopalkrushna Waghralkar intentionally suppressed material information as claimed by the OP He also argued that the term "Hodgkin Lymphoma" does not mean cancer. He also submitted that deceased Gopalkrushna Waghralkar had visited Dinanath Mangeshkar Hospital and Reserarch Center Pune and investigation was done as per directions of the doctors of that hospital and that Dr. Chetan Deshpande diagnosed the disease as Hodgkin Lymphoma which is non cancer, but as deceased Gopalkrushna Waghralkar was running fever, as per advise of Doctors, he was given Chemotherapy cycles at Nagpur in the Hospital of Dr. Anand Pathak. Therefore, he submitted that as the O.P. repudiated the claim without any proper justification, there is deficiency in service provided by the O.P. to the complainants. He relied upon observation made in following cases.
i. United India Insurance Co. Ltd. & another Vs. S.M.S. Tele Communications and another, III (2009) CPJ 246 (NC). In that case it was not proved that the contents and meaning of exclusion clauses were explained to the complainant and hence it is held that unexplained/unnoticed exclusion clauses are not binding on insured as it was mandatory requirement of explaining exclusion clauses by insurer /agent before issuance of insurance cover.
ii. The National Insurance Company Ltd. Vs. D.P. Jain, III (2007) CPJ 34 (NC). It is observed by the Hon'ble National Commission that if exclusion clauses are not explained, the regulation are not binding on insured and said clauses are required to be ignored while considering the claim of insurance.
iii. LIC of India Vs. Smt. Chandara Baghrecha, IV (2003) CPJ 16 (NC). In that case the claim was repudiated on the ground that there was suppression of material facts regarding illness. The insured was thoroughly examined by the Doctor of Insurance company, whose report was filed but his affidavit was not filed and prescription slip was also not produced and hence it is held that repudiation is not justified.
12. On the other had the Learned Advocate of the O.P. during the course of hearing invited our attention to all the medical papers, proposal forms and conditions given under the said proposal forms and submitted that the said documents are sufficient to rely on the plea taken by the O.P. that the deceased was suffering from a dangerous disease namely cancer and that he had taken treatment for cancer and he died due to cancer, but he had suppressed while submitting proposal forms for obtaining polices, the information about his said ailment and the medical treatment taken by him. Thus he submitted that in view of the suppression of the material information, the claim of the complainants has been rightly repudiated by the O.P. He relied upon the observations made in the following cases.
i. Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., IV (2009)CPJ 8 (SC).
ii. Life Insurance Corporation of India Vs. Kusum Patro, II (2012)CPJ 272,(NC) iii. P.C. Chaeko and another Vs. Chairman, LIC of India and others, 2008 (I) ALL MIR 408 ( SC).
iv. Mithoolal Nayak Vs. LIC of India , AIR 1962 Supreme Court 814.
v. Ajaya Prakash Mittal Vs. LIC of India, I (1998 )CPJ 2 (NC).
vi. Senior Divisional Manager, LIC of India Vs. Smt. Gangama and another, III (2002)CPJ 56 (NC) vii. LIC of India and others Vs. Murti Devi, III (2007) CPJ 107, Hariyan State Commission.
viii Angoori Devi Vs. LIC of India and others, IV (2008) CPJ 187 (NC) ix. Diptiben Rajeshkumar Soni Vs. LIC of India and another , in Revision Petition No. 1884 of 2004 decided on 09/03/2009 by Honble National Commission.
13. The ratio laid down in all these cases relied upon by Learned Advocate of O.P. in brief is that when there is suppression of material and important information by the insured while submitting proposal form for obtaining insurance policy, the insurer is within its rights to repudiated insurance claim.
14. We have thus considered the submission of both the parties, their respective Advocates and evidence brought on record. At the out set it is worthy to note that admittedly the two insurance policies covering the risk of the life of the deceased Gopalkrushna Waghralkar was obtained by him respectively on 15/03/2008 & 20/03/2008 and under both the said policies the sum assured was Rupees 1 Crore each and that the deceased Gopalkrushna Waghralkar died on 01/04/2008 i.e. within a period of 17 days from the first policy and within 12 days from second policy. The reason given in the complaints for obtaining the said two policies for such big amounts is only that the deceased Gopalkrushna Waghralkar was interested in the said investment for getting tax benefits. However, it is not shown as to what was that tax which was to be saved by the deceased by obtaining said policies. No Income Tax returns submitted by the deceased Gopalkrushna Waghralkar earlier showing his income are produced on record. Therefore, it is very difficult to accept that the deceased Gopalkrushna Waghralkar had obtained the said policies with a view to get the Income tax benefits.
15. The Complainants as discussed above admitted in their rejoinder filed on record the following material facts. "Dr. Gopalkrushna Waghralkar had taken (suffered from) yellow fever vaccine at Mumbai as he was required to travel Keniya via South Africa and therefore, he had adverse reaction on his body and as his health started deteriorating, he took medical help for recovery. Dr. Gopalkrushna Waghralkar was suffering from fever and hence he had undergone pathological test, biopsy, Bone Marrow Test and C.T. Scan of his body and Dr. Chetan Deshmukh diagnosed a disease namely Hodgkin Lymphoma (non cancer) but as he was getting fever, he had undergone Chemotherapy cycles at Nagpur in the hospital of Dr. Anand Pathak. The deceased Gopalkrushna Waghralkar was not diagnosed as cancer patient. Hodgkin Lymphoma is not a cancer. Complainants had supplied all medical papers to O.P." The said medical history was not given by the deceased Gopalkrushna Waghralkar in the proposal forms submitted by him to the O.P.
16. It is the simple case of the complainants that the agent / advisor of the O.P. has filled the proposal forms for obtaining the aforesaid two policies and he had not asked any information from the deceased Gopalkrushna Waghralkar about his medical history and deceased had only signed those forms without knowing contents thereof and hence there is no deliberate suppression of any fact by the deceased Gopalkrushna Waghralkar. However, there is no independent evidence besides the bare words of the complainants to substantiate their said case. The deceased Gopalkrushna Waghralkar was well educated person and he was doing medical practice. It cannot be therefore believed that the deceased Gopalkrushna Waghralkar would sign the said proposal forms without knowing well their contents.
17. It is not disputed by the complainants as seen from the rejoinder filed by them that the deceased was suffering from Hodgkin Lymphoma and he had taken Chemotherapy treatment. According to the Learned Advocate of the complainants it is not deadly disease namely cancer. However, the O.P. filed affidavit of Dr. Samir Shah who is Onco (Caner) medicine Consultant. He stated in his affidavit that the contents of his report dated 02/01/2013 filed on record are true and correct and he reiterate averments made in that report. The said report signed by him is annexed with that affidavit. As per that report Dr. Sudhir S. Shah had gone through all the medical papers of deceased Dr Gopalkrushna Waghralkar in detail. He in that report has given in detail his observations and lastly observed that the deceased Gopalkrushna Waghralkar was in an advanced state of Hodgkin's disease and was administered ABVD Chemotherapy , a treatment for Hodgkin's Lymphoma and the said Chemotherapy is not given as a Prophylaxis or a trial basis and that deceased Gopalkrushna Waghralkar was diagnosed and treated with Chemotherapy for Hodgkin's Lymphoma in January 2008 onwards till his death on 01/04/2008 due to advanced Cancer of Lymphatic System know as Hodgkin's Lymphoma.
18. In order to come to the said conclusion that Dr. Samir S. Shah had gone through the following medical reports/documents and discharged summary relating to the deceased Gopalkrushna Waghralkar, which are filed on record by O.P. and not disputed by the complainants.
i. Bone Marrow report of Dr. deceased Gopalkrushna Waghralkar, signed by Dr. Mahesh Mandolkar dated 04/01/2008 showing Hodgkin's Lymphoma ii. Surgical Pathology Report specimen dated 01/01/2008 iii. Discharge summary of hospital , signed by Dr. Chetan Deshmukh of Deenath Mangeshkar Hospital, showing that ABVD Chemothrapy administered to deceased Gopalkrushna Waghralkar on 04/01/2008 and advised to take further Chemothrapy at Nagpur Dr. Anand Pathak .
iv. The discharge Summary showing that the deceased Gopalkrushna Waghralkar to be in advanced state of classical Hodgkin disease with the bone marrow and liver involvement.
v. The medical documents of Aditya Hospital Critical Care Center comprising death certificate of deceased Gopalkrushna Waghralkar showing that he died on 01/04/2008 due to Hodgkins disease on therapy.
19. Thus the aforesaid medical opinion of Dr. Samir Shah is supported by his own affidavit and aforesaid medical papers, which can be relied upon safely. Thus these documents have proved that the deceased Gopalkrushna Waghralkar was suffering from cancer disease namely Hodgkin's Lymphoma and the said disease was detected as back as on 04/01/2008 and deceased Gopalkrushna Waghralkar was aware of said disease. However, thereafter while submitting proposal forms for obtaining policies on 15/03/2008 and 20/03/2008 from the O.P. he suppressed the said material and important information. An inference therefore can be drawn that he suppressed that material information only with a view to obtain the aforesaid two policies from the O.P. It cannot be believed under aforesaid facts & circumstances that the agent/advisor of the O.P. filled those forms without explaining contents thereof to the deceased Gopalkrushna Waghralkar.
20. The deceased replied in negative to question in respect of his medical history while submitting the aforesaid proposal forms. The said medical history is under clause 11 (1) to clause 11(5) of the said form. The information sought for under those clauses is whether he was currently in good health. He replied in affirmative. Further information was sought as to whether or not he is under treatment; whether he suffered from or received treatment or advised for any disease namely cancer; whether he spent three consecutive days in hospital of any illness, sickness or disease; whether he was treated or advised for pathological test. The deceased Gopalkrushna Waghralkar replied in negative to all the said questions.
21. Therefore we are satisfied that the deceased Gopalkrushna Waghralkar knowingly suppressed this material information. This is violation of the principle of "Utmost-good faith" between the parties. Therefore, policies are vitiated.
22. We also find that earlier examination of deceased Gopalkrushna Waghralkar by panel of Doctors of O.P. under these facts and circumstances cannot be said as sufficient ground to hold that the deceased Gopalkrushna Waghralkar was not suffering from any such deadly disease before submitting proposal forms for obtaining the policies.
23. The proposal forms submitted by the deceased Gopalkrushna Waghralkar show declaration at their end the material declaration given by the deceased to the effect that he has answered the questions in the proposal forms after having fully understood the nature of the questions of and the importance of disclosing all information and answers given by him are true and complete in every respect and he has not withheld any material information or suppressed any fact. If there has been a non discloser of a material fact, the company shall have the right to treat the policy as void and all premiums paid under the policy may be forfeited to the company.
24. In view of the said declaration given by deceased Gopalkrushna Waghralkar and in view he suppression of the aforesaid material facts by him, we hold that the O.P. has rightly repudiated the claim proposals submitted by the complainants. The decisions relied upon by Learned Advocate of the complainants and discussed above are not applicable to the facts and circumstances of the present case as they are different from those of the said cases. On the contrary, the ratio laid down in the aforesaid cases relied upon by Learned Advocate of the O.P. is applicable to the present cases under the above discussed facts and circumstances.
25. Thus we hold that it is not proved that the O.P. has provided deficient service to the complainants. The issue No. 3 is therefore decided in negative. The complainants are thus not entitled to the reliefs sought by them. Both the complaints therefore, deserve to be dismissed.
ORDER
1. Both the complaints bearing Nos. CC/09/8 & CC/09/9 are hereby dismissed.
2. No order as to cost.
3. Copies of the order be furnished to both parties.
Dated:-
02/09/2013.
[HON'ABLE MR. B.A. Shaikh, Judicial] PRESIDING MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay