State Consumer Disputes Redressal Commission
Smt. Raksha Devi vs Life Insurance Corporation Of India on 28 July, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 2 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN FIRST APPEAL NO. 60 / 2005 Smt. Raksha Devi ......Appellant Versus Life Insurance Corporation of India .....Respondent Sh. Manoj Kohli, Learned Counsel for the Appellant Sh. Deepak Ahluwalia, Learned Counsel for the Respondent Coram: Hon'ble Justice Irshad Hussain, President Surendra Kumar, Member Ms. Luxmi Singh, Member Dated: 28.07.2006 ORDER
(Per:
Mr. Surendra Kumar, Member):
This is a complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 17.02.2005 passed by the District Forum, Dehradun dismissing the complaint of the complainant.
2. The facts giving rise to the present case are that the husband of the complainant Sh. Jagdish Chandra took an insurance policy No. 270237974 of Rs. 1,00,000/- from the opposite party in August 1996 and the premium was regularly paid. Unfortunately the insured died on 26.04.1997 due to heart failure. The complainant preferred claim with the opposite party but on 18.05.1998 her claim was repudiated. The insured died due to cardio respiratory failure. The insured was not suffering from the said disease at the time of taking the policy or before that. The proposal form was also filled in by the agent. There is deficiency in the service of the opposite party in repudiating the claim, therefore she filed complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum.
3. The opposite party filed written statement and took the defence that the premium due for April 1997 was deposited after the death of the insured and as such there was no valid contract between the parties before the death of the insured; the information disclosed by the insured in the proposal form was found incorrect; the insured concealed the material fact regarding his health in the proposal form and as such there was no deficiency in the services of the opposite party in repudiating the claim and the claim was repudiated after proper investigation and the information to this effect was duly given to the complainant vide letter dated 18.05.1998. The insured was suffering from blood cancer at the time of taking the policy and he was taking treatment in various hospitals. If the insured would have disclosed the correct facts, his proposal would not have been accepted. The insured died within two years of taking the policy and as per Section 45 of the Insurance Act, the claim was repudiated on the ground of giving wrong information. The insured died due to cardiac arrest which is directly linked with blood cancer.
4. The Learned Forum after appreciating the evidence of the parties and carefully considering the material on record accepted the defence plea and came to the conclusion that the insured was suffering from CML (Blood Cancer) at the time of taking the policy or at the time of filling the proposal form for which he had undergone treatment from AIIMS, New Delhi, which fact was concealed by him in the proposal form and the claim was rightly repudiated by the opposite party and, therefore, dismissed the complaint. Aggrieved, the complainant has filed the present appeal.
5. We have heard the Learned Counsel for the parties and have carefully considered their submissions in the light of the material on record. The main contention of the complainant is that at the time of taking the policy in question, the insured was healthy and he was not suffering from any disease and he died on 26.04.1997 due to cardio respiratory failure and he was not suffering from this disease at the time of taking the policy and the death of the insured has no nexus with blood cancer. She specifically alleged in her complaint that the opposite party repudiated her claim on wrong facts and without any reason. She alleged in para 2 of her complaint that the insured was not fully literate and the agent took the signatures of the insured on blank form. In para 8 of the complaint, it is alleged that the insured died due to cardio respiratory failure and the insured was not suffering from the said disease at the time of taking the policy or even prior to that. In para 9, it is alleged that before accepting the proposal form, the information given in the proposal form was thoroughly examined by the opposite party and thereafter the policy was issued.
6. Per contra, the opposite party in their written statement in para 5 specifically pleaded that the primary cause of death of the insured was chronic myeloid leukemia (Blood Cancer) and not cardio respiratory failure as alleged by the complainant. In para 7, denied that the proposal form was not filled by the insured or that his signatures were obtained on blank form. It was further alleged that at the time of purchase of the policy, the agent acts as an agent of the proposed policyholder.
7. There is certificate issued by Jain Hospital dated 26.04.1997 (Paper No.
43) in which it is mentioned that Sh. Jagdish Chandra expired at 4:15 A.M. on 26.04.1997. It is further written in this certificate that the insured died due to ARDS resulting in Cardio Respiratory Failure. Sh. Harish Chandra, Divisional Manager, Divisional Office, LIC of India in his affidavit dated 06.08.2002 (Paper Nos. 44 to 47) averred that the insured was under treatment from All India Institute of Medical Sciences, New Delhi. He had started taking treatment from AIIMS, New Delhi from 10.07.1996 as an OPD patient. Paper No. 51 is the Certificate of Hospital Treatment issued by AIIMS, New Delhi. In Column 2 of this form, it is written that the insured had started taking treatment in the hospital from 10.07.1996 as OPD patient. Paper No. 52 is the Medical Attendent's Certificate issued by Dr. Rajeev, a Senior Resident Doctor of AIIMS, New Delhi. In column 4(a), the primary cause of death has been shown as CML blast. In column 4(b) of this form, it is mentioned that the insured was suffering from CML. In column 4(c), it is mentioned that he had been suffering from this disease from before 1 year of this death. In column 4(e), it is mentioned that the said disease was first observed by the insured in January 1996. In column 4(f), it is written that the insured had first consulted on 10.07.1996.
8. It is evident from the record that the policy was issued on 07.08.1996 whereas the insured had first consulted the doctor on 10.07.1996 which is clearly mentioned in medical attendent's certificate (Paper No. 52) referred above. Paper No. 59 is the prescription issued by AIIMS, New Delhi dated 30.08.1996 in which the diagnosis has been shown as CML. Paper No. 57 is the Medical Attendent's Certificate dated 17.09.1997 signed by Dr. R.K. Jain. In column 4(f), it is mentioned that the insured had first consulted him on 24.04.1997 and the period of treatment in column 4(g) has been shown as 24.04.1997 to 26.04.1997. In column 4(c), it is mentioned that the insured had been suffering from the said disease i.e. CML from before six months of his death. Paper No. 58 is Certificate of Hospital Treatment dated 17.09.1997. The date of admission in the hospital has been shown as 24.04.1997 at 10:00 p.m. In column 3 of this certificate, it is mentioned that the insured was treated by AIIMS, New Delhi. The doctor of AIIMS, New Delhi has stated that the insured was treated as an OPD patient. AIIMS, New Delhi is a renowned and prestigious medical institution and the certificate issued by a Senior Resident Doctor of AIIMS, New Delhi cannot be disbelieved without any cogent reason. Even there is no allegation of the complainant that the certificate is not correct or that the insured had not consulted the doctor of AIIMS, New Delhi or that he was not treated at AIIMS, New Delhi as an OPD patient. In the prescription dated 30.08.1996 issued by AIIMS, New Delhi (Paper No.
59), the diagnosis has been mentioned as CML. CML (Blood Cancer) is not a disease which suddenly develops within a period of two - three weeks. The policy was taken on 07.08.1996 and the prescription is dated 30.08.1996. The doctor of AIIMS, New Delhi has also certified that the insured had first consulted on 10.07.1996 i.e. before taking the policy in question.
9. There is yet another fact which creates suspicion. The age of the insured has been shown as 56 years in the proposal form (Paper No. 62). It looks that the insured was in the knowledge that he was suffering from CML and he may not live for a long period and considering this fact, he had taken the policy suppressing this material fact regarding his illness.
10. There is yet another Certificate of Hospital Treatment (Paper No. 48), wherein in column 4(b), it is written that the duration of the complaint was six months. In column 5(a), the symptoms have been narrated as weakness from six months, pain and swelling of feet from five days. It is further written that this fact was reported by the patient i.e. insured. As stated above, there is evidence on record to prove that the insured was suffering from CML (Blood Cancer) at the time of filling the proposal form or taking the policy of insurance.
11. Learned Counsel for the complainant referred the case law of LIC of India Vs. Joginder Kaur and another; 2005 (1) CPC, United India Insurance Co. Ltd. Vs. Sh. Mehenga Singh; 2004 (1) CPC 507 and LIC of India Vs. Jasvinder Kaur; III (1999) CPJ 43 in support of his submission that no evidence has been adduced to prove that the doctor had treated the insured for the said disease and simple allegation is not sufficient to prove the case of concealment of material fact. There is sufficient evidence on record to prove that the insured was suffering from CML at the time of filling the proposal form. There is also a certificate of the doctor issued in that regard. To the contrary, there is no evidence of the complainant to prove that the insured was not suffering from any disease. In the case law of Khirbati and another Vs. LIC of India and another; III (2005) CPJ 54, the proposal was submitted on 15.03.2002 with premium. The deceased was suffering from Leukemia disclosed by pathological test at J.L.N. Hospital and confirmed at Tata Memorial Hospital, Mumbai in May 2002. Knowledge of ailment prior to submission of proposal form was not proved and the repudiation was held to be unjustified. The insurance company was held liable under the policy. In the present case, the insured had first consulted the doctor of AIIMS, New Delhi on 10.07.1996 and the policy in question was taken on 07.08.1996. This evidence is sufficient to prove that the insured had suppressed the fact regarding his illness at the time of filling the proposal form and the insurance company was rightly justified in repudiating the claim. In the case of LIC of India and another Vs. Hadam Lal Dharmania; I (2005) CPJ 45, the claim was repudiated on the ground that the insured was a diabetic patient for last 13 years which was not disclosed. No hospital record, no prescriptions in support of treatment was produced. The burden of proof was not discharged by the insurer and the company was held liable under the policy. In the present case, the burden has duly been discharged by the insurance company by adducing sufficient evidence in support of its case as referred above. In the case law of LIC of India Vs. Manju Parwani; II (2006) CPJ 20, it was held that no material was produced to prove that negative answers were false to the knowledge of policyholder. We have already held above that the evidence on record clearly reveal that the insured was suffering from the disease at the time of filling the proposal form and he knowingly suppress it and gave wrong answers to the queries in the proposal form.
12. The Learned Counsel for the opposite party rightly placed reliance on Section 45 of the Insurance Act, 1938 and submitted that the policy is not to be called in question on ground of misstatement after two years. On the same point i.e. Section 45 of the Insurance Act, he referred the case law of Mithoolal Nayak Vs. LIC of India; AIR 1962 Supreme Court 814, Brahm Dutt Sharma Vs. LIC of India; AIR 1966 Allahabad 474. In the case law of LIC of India Vs. Smt. Sosamma Punnan; AIR 1991 Kerala 230, it was held that if a policy of insurance is called in question before the expiry of two years from which it was effected, neither the first part nor the second part of Section 45 would have any application and it would be open to the insurer to repudiate the policy if any material facts contained in the form are inaccurate. In the case law of Smt. Vidya Devi etc. Vs. LIC of India; II (2003) CPJ 106 (NC), it was held by the National Commission that the doctor who recorded the nature of disease at the time of admission could not have thought of all these illnesses with which the insured suffered unless he himself told the same to the doctor at the time of his admission. In the present case, the doctor has also certified in the certificate (Paper No. 58) that the information set forth in the certificate in respect of the insured was given by the insured himself and his attendents. In the case of LIC of India and Others Vs. Smt. C.P. Kacheebi; II (2003) CPJ 108 (NC), it was held by the National Commission that insurance is a contract of good faith and whoever violates the same, pays a price for that. In the case of LIC of India Vs. Mansa Devi; II (2003) CPJ 135 (NC), the insured was suffering from diabetes and undergone treatment for eight years which fact was not disclosed. It was held to be suppression of material fact. In the case of Shanta Bai alias Basanta Devi Vs. LIC of India; 2003 ALJ 2908, the Hon'ble Allahabad High Court held that the policy was obtained by misrepresentation by playing fraud concealing material fact and the rejection of claim was held proper.
13. For the reasons aforesaid and taking totality of circumstances into consideration, we are of the opinion that the inference drawn by the District Forum cannot be said to be unjustified and the impugned order passed by the District Forum does not suffer from any illegality or immateriality and is fit to be upheld. As such, this appeal fails and is liable to be dismissed.
14. Appeal is dismissed. No order as to costs.
(MS.
LUXMI SINGH) (SURENDRA KUMAR) (JUSTICE IRSHAD HUSSAIN)