State Consumer Disputes Redressal Commission
Chhannu Lal Sahu vs B.M. Bhartiya Jeevan Bima Nigam on 1 October, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/15/235
Instituted on : 19.05.2015
Chhannu Lal Sahu, Age 44 years,
S/o Late Shri Khorbahraram Sahu,
R/o : Village ; Biroda, Post : Kolar, Police Station
and Tehsil - Abhanpur, District Raipur (C.G.) ... Appellant
Vs.
Branch Manager,
Life Insurance Corporation of India,
Branch Manager, Claim Department,
Divisional Office, Pandri,
Raipur (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri R.S. Jangde, for appellant.
Smt. Sunila Jain, for respondent.
ORDER
Dated : 01/10/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 21.04.2015, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G). (henceforth "District Forum" for short), in Complaint Case No.336/2014. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
// 2 //
2. Briefly stated, the facts of the complaint of the appellant (complainant) are that appellant (complainant) has obtained insurance policy from the respondent (O.P.) in the name of his wife Smt. Janki Sahu for the sum assured Rs.1,00,000/- covering period from 23.04.2013 to 23.04.2033. The policy No. is 386725591. The appellant (complainant) is nominee in the above policy. On 25.09.2013, the wife of the appellant (complainant) Smt. Janki Sahu died due to Jaundice. The appellant (complainant) submitted claim form before the respondent (O.P.) but, the respondent (O.P.) denied the claim of the appellant (complainant). Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The respondent (O.P.) filed its written statement and averred that the insurance policy No.386725591 dated 23.04.2013 was issued in the name of Smt. Janki Sahu and the sum assured under the policy was Rs.1,00,000/-. The life assured Smt. Janki Sahu expired on 25.09.2013 i.e. within six months of the date of issuance of the insurance policy. The life assured Smt. Janki Bai was suffering from disease of Hypersplenomegaly (Enlargement of liver) and was taking treatment and she died due to moderate splenomegaly / vague abdominal pain. The life assured Smt. Janki Sahu suppressed material fact at the time of obtaining insurance policy and misrepresented the respondent (O.P.) and obtained the // 3 // insurance policy from the respondent (O.P.), therefore, the respondent (O.P.) has repudiated the claim of the appellant (complainant). The appellant (complainant) is not entitled to get any compensation from the respondent (O.P.) and the complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it by the parties observed in the impugned order that the life assured suppressed her previous diseases and obtained insurance policy from the respondent (O.P.) and dismissed the complaint. Hence this appeal.
5. The appellant (complainant) filed documents. The documents are , registered notice dated 02.05.2014 sent by Shri R.S. Jangde, Advocate to the respondent (O.P.) and postal receipt.
6. The respondent (O.P.) has also filed documents. The documents are photocopy of letter dated 30.03.2014 sent by the Life Insurance Corporation of India, Divisional Office, Raipur (C.G.) to the appellant (complainant), DMR opinion dated 10.03.2014 of Dr. Alok Rai, prescription of Aarogya Hospital dated 07.10.2010 to 11.09.2010, HAEMATOLOGY Report of Dr. Sanjeev Tiwari, Death Certificate of Mrs. Janki Sahu, issued by Shri Medishine Hospital, Raipur (C.G.), Report dated 11.09.2010 of Aarogya Hospital, Raipur (C.G.) in respect of Mrs. Janki Sahu, Death Certificate issued by Municipal Corporation, Raipur, Death Certificate of // 4 // Mrs. Janki Sahu issued by Shri Medishine Hospital, Raipur, LIC New Bima Gold Policy, Proposal for insurance submitted by Mrs. Janki Sahu and photographs.
7. Shri R.S. Jangde, learned counsel appearing for the appellant (complainant) has argued that the life assured Smt. Janki Bai has not suppressed any material fact. The respondent (O.P.) did not succeed to prove that life assured Smt. Janki Sahu was suffering from any disease which exclude her for getting compensation from the respondent (O.P.) under the insurance policy, therefore, the appellant (complainant) is entitled to get compensation from the respondent (O.P.). The respondent (O.P.) has wrongly repudiated the claim of the appellant (complainant). The impugned order passed by the learned District Forum, is erroneous and the same is liable to be set aside.
8. Smt. Sunila Jain, learned counsel appearing for the respondent (O.P.) has argued that the impugned order passed by the learned District Forum, is just and proper and does not suffer from any infirmity or illegality. The deceased life assured Smt. Janki Bai was suffering from disease of Hyperplenomegaly (Enlargement of Liver) prior to taking the policy. The life assured suppressed material facts at the time of obtaining insurance policy, therefore, the respondent (O.P.) has jurisdiction to deny the claim of the appellant (complainant) and the impugned order passed // 5 // by the learned District Forum, is just and proper and does not call for any interference by this Commission.
9. We have heard learned counsel for the parties and have also gone through the record of the District Forum and have also perused the impugned order passed by the learned District Forum.
10. The respondent (O.P.) has specifically pleaded that the life assured was taking treatment of Hypersplenomegaly (Enlargement of Liver) since 07.10.2010 i.e. prior to obtaining insurance policy and taking treatment for moderate splenomegaly / vague abdominal pain since 11.09.2010.
11. The respondent (O.P.) has filed DMR Opinion on treatment papers of Late Janki Sahu, given by Dr. Alok Rai on 10.03.2014 in which it is mentioned that "Life assured was treated on 7/10/2010 for Hyper Splenison with low platelet and white cell count."
12. Other prescriptions of Dr. Preeti Agrawal, Aarogya Hospital, Raipur has also been filed by the respondent (O.P.) in which it is mentioned that "Smt. Janki Sahu is having complaint of Moderate Splenomegaly / Vague abdominal pain." Smt Janki Sahu was taking treatment from Dr. Preeti Agrawal, Aarogya Hospital, Raipur since 11.09.2010 for moderate splenomegaly / vague abdominal pain. Medishine Hospital issued Death Certificate of Smt. Janki Bai, in which it is mentioned that "cause of death is PHT B/C Pneumonia, Infective // 6 // Erdocerfitis, Cardio Respiratory Arrest". In the report of Aarogya Hospital dated 11.09.2010 it is mentioned against column of impression "Moderate Splenomegaly & Multiple tortuous venous channel seen at spleenic hilum.".
13. It appears that the life assured Smt. Janki Bai was suffering from above disease since 11.09.2010 and insurance policy was obtained by her from the respondent (O.P.) on 23.04.2013.
14. 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 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."
// 7 // 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 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."
15. 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."
// 8 //
16. 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.
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".
17. 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 // 9 // 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.
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."
// 10 //
18. 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 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 // 11 // 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, 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 // 12 // 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."
19. 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 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.
20. In the instant case, the deceased life assured Smt. Janki Bai obtained insurance policy No.386725591 for the sum assured Rs.1,00,000/- from the respondent (O.P.) on 23.04.2013 and at that time she submitted proposal form for insurance on her life. The respondent (O.P.) has filed photocopy of the Proposal Form. In Clause 11 i.e. Personal History some questions have been asked from the life assured which read thus :-
11. Personal History Answer 'Yes'' or If yes, please 'No' give full details a ................
b. ................
c. .................
d. Are you suffering from or have No
you ever suffered from ailments
// 13 //
pertaining to Liver, Stomach,
Heart, Lungs, Kidney, Brain or
Nervous System ?
e. Are you suffering from or have No
you ever suffered from Diabetes,
Tuberculosis, High Blood
Pressure, Low Blood Pressure,
Cancer, Epilepsy, Hernia,
Hydrocele, Leprosy or any other
disease ?
f. .........
21. In response to the above questions, the life assured Smt. Janki Sahu, gave reply in negative form i.e." No."
22. From bare perusal of treatment papers and medical report filed by the respondent (O.P.) in respect of life assured Smt. Janki Sahu, it appears that she was suffering from Hypersplenomegaly (Enlargement of Liver) since 07.10.2010 and Moderate Splenomegaly / Vague Abdominal Pain since 11.09.2010 for over three years prior to obtaining insurance policy, but she did not disclose these facts while making proposal statement and has violated the terms and conditions of the insurance policy, therefore, the appellant (complainant) - husband of the life assured, is not entitled for any insurable benefit under the insurance policy.
23. On the basis of above discussion, it appears that the finding recorded by the District Forum, is reasonable and does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
// 14 //
24. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /10/2015 /10/2015 /10/2015 /10/2015