State Consumer Disputes Redressal Commission
Managing Director L.I.C. Of India & Ors. vs Smt.Reeta Devi on 3 May, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/2017/53
Instituted on : 22.02.2017
1. Managing Director,
L.I.C. of India,
First Floor, Yogakshema Control Office,
Post Box No.19953, Nariman Point,
Mumbai - 400021
2. General Manager,
L.I.C. of India,
Branch Code 531, In Front of Devi Mandir,
Branch - 1, Muzaffarpur,
Bihar - 842001
3. Marketing Manager,
L.I.C. of India,
Divisional Office - Muzaffarpur,
Jeevan Prakash, Umashankar Marg, P.B. No.3,
Muzaffarpur, Bihar - 842001
4. Manager,
L.I.C. of India,
BSFC Building, First Floor, Frazer Road,
Patna - 800001
5. Marketing Manager,
L.I.C. of India, Divisional Office, Raipur,
Jeevan Prakash, Jeevan Beema Marg,
Pandri, Raipur (C.G.)
Authorised by all of them
Through - Manager (L & HPF)
Divisional Office, Jeevan Prakash,
Jeevan Beema Marg, Pandri,
Raipur (C.G.) ... Appellants (OPs)
Vs.
Smt. Reeta Devi,
Through : Shri Rakesh Kumar,
Gupta Nivas, L.I.G. 926,
Sector - 6, Housing Board Colony,
Vidhan Sabha Road, Saddu,
Raipur (C.G.) ... Respondent (complainant)
//2 //
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HO'N'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES: -
Shri N.K. Shrivastava, for the appellants (OPs).
Shri Yogendra Singh Rajput, for the respondent (complainant).
ORDER
Dated : 03/05/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 25.11.2016, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.97/2015. By the impugned order, the complaint of the complainant has been allowed and it has been directed that :-
(a) The OPs will pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) to the complainant within one month from the date of order along with 6% simple interest from the date of filing of the complaint i.e. 05.02.2015 till realisation.
(b) The OPs will pay a sum of Rs.5,000/- (Rupees Five Thousand) to the complainant towards compensation for mental agony.
(c) The OPs will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards advocate fees and cost of litigation to the complainant.
//3 //
2. Briefly stated, the facts of the complaint of the complainant are that the complainant's husband Late Parmeshwar Prasad Gupta had taken LIC policy Number as 576004536 named Jeevan Anand. The assured amount for the policy was Rs.2,00,000/- and was commencing from the month of April, 2012. The premium amount of Rs.12,174/- was to be paid on yearly basis by her husband and he had paid all the premiums in time till date of his death. The complainant's husband expired on 31.01.2014 . The complainant filed a complaint with O.P. No.2 but she did not receive any response from OPs. She has been trying to communicate with OPs for some time now but there has been no response from them. Neither there has been any hint of any kind of any attempt to redress her grievance against OPs that could closely justify their act of harassment. As per Life Insurance Policy complainant was named as a nominee, and after the death of her husband, she applied for the death claim amount of Rs.2,00,000/- which OPs denied by saying that Late Parmeshwar Prasad Gupta was having Diabetes and Hypertension before taking the policy. The deceased was not aware of any such condition at the time of taking the policy and had informed all the things to the agent of the OPs and that, it is the mistake of the agent of OPs only who had not provided OPs the exact details. The OPs are already liable to pay Rs.2,70,000/- for fraud done with other company. The complainant feels cheated by OPs. The complainant tried several follow ups with the OPs but did not receive any positive response from them for a long time which has harassed the complainant a lot for //4 // viewing negligent and deficient services of the OPs. Thereafter it can be clearly said that the OPs had taken the amount fraudulently from the complainant with no services at all. The complainant after repeated request to the OPs stating her grievances, but had not received any response from them and her complaint had been overlooked which is extremely disappointing. The complainant had waster unreasonable amount of time and money in trying to resolve this issue but to no avail. The complainant appealed to have received such inept and unprofessional services from the OPs which had created unnecessary hassles for the complainant resulting in loss of time and money. The complainant made several complaints to the OPs by sending letters stating the entire problem but had not received any appropriate response from the OPs. That with a great hope and hearing about the healthy reputation of the OPs, the complainant had availed services of the OPs, but has been let down by the level of services provided by the OPs. The complainant had put a lot of faith in the services provided by the OPs and paid his hard money to them but they breached his faith. Due to the deficient and unprivileged services of the OPs, the complainant has suffered extreme loss of time, money and reputation. In spite of following up repeatedly with the OPs, no positive response has been received till date. The OPs have taken excess, unreasonable and irrational time to resolve the complainant's grievance and the continuation of it has been causing the complainant great mental and emotional agony. The OPs have been grossly negligent and //5 // unprofessional in their approach. The complainant is deeply aggrieved by the absurdity shown by the OPs which has not only left the complainant startled but is against the philosophies which the OPs profess. Hence the complainant filed instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
3. The OPs filed written statement and raised preliminary objections and averred that husband of the complainant obtained the policy from Muzaffarpur Division and in the policy the address given by him was of Sitamarhi which makes it clear that the he was not the resident of Raipur (Chhattisgarh) and hence this Forum has no jurisdiction to entertain the complaint Hence U/s 11 of Consumer Protection Act, 1986 the complaint is liable to be dismissed. The complainant is not a resident of Raipur as :-
That the address given in policy is "At & P.O. Khairba, Vishnupur Via Parihar, Sitamarhi.
That the declaration by claimant (Claim Form A) address is mentioned as "Village Khairba, Vishnupur, Parihar, Sitamarhi.
That as per ICMS complaint lodged by the son of DLA address given in complaint is "Parmeshwar Pd. Gupta, At & P.O. Vishnupur,Sitamarhgi,Bihar.
The O.P. N.3 Divisional Office, Muzaffarpur, vide their letter dated 15.11.2014 had informed the complainant that "Death claim u/p no.56004536 is repudiated on the ground of suppression of pre-existing //6 // illness of Diabetes and Kidney Disease." Hence the allegations of negligency / deficiency in service and amount taken fraudulently are baseless. The death claim being an early death claim takes time in collecting treatment details and other material evidences in deciding the claim. The OPs Life Insurance Corporation of India is bound to its policy conditions and no claim is being denied or admitted beyond the policy conditions. Both insurer and insured are to come with clean hands. The deceased life assured has mis-stated regarding his health in proposal form and suppressed the pre-existing illness of DM/Chronic Kidney Disease. The complainant has already been informed about repudiation of death claim on 15.11.2014. The complainant is not entitled to receive any amount from the OPs as the death claim of the life of the deceased insured has already been repudiated on the ground of mis-statement regarding health and suppressions of pre-proposal illness of DM/HTN/CKD. The deceased life assured just after taking the insurance policy died within period of two years, the benefit of Section 45 of Insurance Act, 1938 is not available to the complainant. As per Claim Form B Doctor's Certificate issued by Dr. Manish Kumar :-
Ikz- dz-4@, Ek`R;q dk okLrfod izkjafHkd dkj.k% Cardio respirator arrest.
dkj.k D;k Fkk\ nwljs dkj.k% Diabetic Mellitus type 2 with diabetic kidney with hypertension with anaemia.
Izk- dz- 6@1 ftl jksx ls mldh DM 20 years
e`R;q gqbZ gS] mlds HTN 2 years
vykok dkSu ls vU;
jksx Fks\
//7 //
As per claim form B1 Certificate of Hospital treatment issued by Dr. Manish Kumar :
Q.4(b) The duration of the K/c/o CKD / HTN (4 yr) / DM complaints reported by him 20 yrs.
Q.No.6. What was the diagnosis T2DM/DKD/HTN/Anemia.
arrived at in the Hospital
Q.No.7 Was there any other disease DM 20 yrs.
or illness which preceded or HTN 2 yrs.
co-existed with the ailment
As per Claim form C :
Izk-dz- Ek`R;q dh frfFk o le; 30-01-2014@08%35 cts
4@v
Ikz-dz- Ek`R;q dk dkj.k e/kqesg
4@c
Ikz-dz- Ek`R;q dk LFkku jk;iqj
4@l
Ikz-dz- nQukus ;k nkg laLdkj dh 31-01-2014@8%00 cts 8@n frfFk o le;
Ikz-dz- nQukus ;k nkg laLdkj ds vius xkao esa [kSjck@fcgkj 88@b LFkku dk uke o irk From the claim form C it is very much evident that the deceased life assured was cremated in Bihar (Death happens at Raipur on 30.01.2014 & immediately cremated at Bihar on 31.01.2014). Cause of death is also diabetic mellitus which is pre-existing illness and in the knowledge of the deceased (Duration of disease is 20 years).
The deceased life assured deliberately mis-stated about his health the Q. No.11 of proposal form and thus suppressed pre-existing illness.
//8 // The contract of insurance is based on the principle of Utmost Good Faith.
Any deviation from the principle entitles the insurer to cancel the insurance policy. The deceased deliberately concealed the fact that he was suffering from DM (20 years) and HTN (2 years). The deceased was also suffering from chronic kidney disease. These facts were deliberately concealed / suppressed at the time of taking insurance and filling proposal form. Hence the action of repudiation by OPs is justified. The deceased life assured concealed the pre-existing illness of DM (20 years) and HTN (2 years) which was material fact. It has been an established fact that any fact which goes to the root of the contract of insurance has a bearing on the risk involved, would be material. From the above it is evident (i) deceased life assured was suffering from DM (20 years) and HTN (2 years), CKC and he was well aware of these facts. Thus there is breach of contract. Information given in proposal form were untrue on material aspects. In replies to the various questions in the proposal form, the insured had concealed material information from the Insurance Corporation, and thus had violated the terms and conditions of the contract In view of the concealment of material facts, the claim had rightly been repudiated by the OPs. The complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure I is LIC Policy Bond Paper, Annexure II are Medical Certificate and treatment certificate, Annexure III is death certificate, Annexure IV is death report, Annexure //9 // V is Paper Clipping, Annexure VI is letter copy, Annexure VII is courier receipt, Annexure VIII is repudiation letter.
5. The OPs have filed documents. NA-1 is proposal form, NA-2 is insurance policy, Na-3 is Certificate of Hospital Treatment, NA - 4 is Certificate of Doctor.
6. Learned District Forum after having considered the material placed before it by the parties, has partly allowed the complaint and directed the OPs to pay the amounts to the complainant, as mentioned in para 1 of this order.
7. Shri N.K. Shrivastava, learned counsel for the appellants (OPs) has argued that the order passed by the District Forum, is erroneous and is liable to be set aside. The husband of the respondent (complainant) Parmeshwar Prasad Gupta obtained the policy from Muzaffarpur Division and in the address given by him was of Sitamarhi, which makes it clear that he was not resident of Raipur (Chhattisgarh), therefore, the District Forum, Raipur (C.G.) has no territorial jurisdiction to decide the matter. He further argued that deceased Parmeshwar Prasad Gupta was suffering from diabetes, much prior to obtaining insurance policy and he suppressed the material facts at the time of obtaining insurance policy. Therefore, the appellants (OPs) have jurisdiction to deny the claim of the respondent (complainant). The impugned order passed by the District Forum is not sustainable in eye of law and the same is liable to be set aside.
//10 //
8. Shri Yogendra Singh Rajput, learned counsel for the respondent (complainant) has argued that the life assured had not suppressed any material fact to the appellants (OPs). The appellants (OPs) did not succeed to prove that life assured Late Parmeshwar Prasad Gupta was suffering from any disease which excludes him for getting compensation from the appellants (OPs) under the insurance policy. The order passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality. The appeal filed by the appellants (OPs) is liable to be dismissed.
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 District Forum.
10. The respondent (complainant) pleaded that her husband Late Parmeshwar Prasad Gupta had taken life insurance policy No.576004536 named Jeevan Anand from the appellants (OPs). The assured amount for the policy was Rs.2,00,000/- and was commencing from the month of April, 2012. The premium amount of Rs.12,174/- was to be paid on yearly basis by her husband and he had paid all the premiums on time till date of his death.
11. The respondent (complainant) filed Death Certificate of Late Parmeshwar Prasad Gupta issued by Registrar, Birth and Death and also death report issued by Dr. B.R. Ambedkar Memorial Hospital, //11 // Raipur. In the death report issued by Dr. B.R. Ambedkar Memorial Hospital, it is mentioned that the deceased Parmeshwar Prasad Gupta had died due to Cardio respiratory arrest.
12. Now we shall examine whether the life assured had suppressed material facts regarding his diseases to the appellants (OPs) at the time of obtaining insurance policy ?
13. As per Claim Form B Doctor's Certificate issued by Dr. Manish Kumar :-
Ikz- dz-4@, Ek`R;q dk okLrfod izkjafHkd dkj.k% Cardio respiratory arrest.
dkj.k D;k Fkk\ nwljs dkj.k% Diabetic Mellitus type 2 with diabetic kidney with hypertension with anaemia.
Izk- dz- 6@1 ftl jksx ls mldh DM 20 years
e`R;q gqbZ gS] mlds HTN 2 years
vykok dkSu ls vU;
jksx Fks\
As per claim form B1 Certificate of Hospital treatment issued by Dr. Manish Kumar :
Q.4(b) The duration of the K/c/o CKD / HTN (4 yr) / DM complaints reported by him 20 yrs.
Q.No.6. What was the diagnosis T2DM/DKD/HTN/Anemia.
arrived at in the Hospital
Q.No.7 Was there any other disease DM 20 yrs.
or illness which preceded or HTN 2 yrs.
co-existed with the ailment
//12 //
As per Claim form C :
Izk-dz- Ek`R;q dh frfFk o le; 30-01-2014@08%35 cts
4@v
Ikz-dz- Ek`R;q dk dkj.k e/kqesg
4@c
Ikz-dz- Ek`R;q dk LFkku jk;iqj
4@l
Ikz-dz- nQukus ;k nkg laLdkj dh 31-01-2014@8%00 cts
8@n frfFk o le;
Ikz-dz- nQukus ;k nkg laLdkj ds vius xkao esa [kSjck@fcgkj
8@b LFkku dk uke o irk
14. Looking to the above documents, it appears that the cause of death of deceased Parmeshwar Prasad Gupta is also Diabetic Mellitus, which is pre-existing illness and he was suffering from the above disease since last 20 years. The Diabetes is such type of disease, which can easily be detected to the patient. The deceased Parmeshwar Prasad Gupta, was suffering from Diabetes Mellitus since last 20 years, therefore, it is not possible for him that he was having knowledge regarding the Diabetes Mellitus disease. It appears that the deceased was suffering from Diabetes Mellitus since last 20 years.
15. The respondent (complainant) herself filed Certificate of Hospital Treatment in which column No.4 (a) it is mentioned Breathlessness 2 days, swelling over B/L lower limbs 2 days k/c/o CKD/HTN/DM : 20 yrs. In column No.7 it is mentioned that DM 20 yrs and HTN 2 yrs.
//13 //
16. It appears that the deceased was suffering from Diabetes Mellitus since last 20 years and he was also suffering from Hypertension since last 2 years.
17. 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."
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.
//14 // 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."
18. 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."
19. 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.
//15 // 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".
20. 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 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 //16 // 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."
21. 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 //17 // 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 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, //18 // 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 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."
22. 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 //19 // 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.
23. In the instant case, the deceased life assured Parmeshwar Prasad Gupta obtained insurance policy No.576004536 named Jeevan Anand for sum assured Rs.2,00,000/- from the appellants (OPs) in the month of April, 2012. According to the appellants (OPs), the life assured Parmeshwar Prasad Gupta submitted proposal form for insurance on his life, but in the proposal form he did not disclose the fact that he was suffering from Diabetes Mellitus and Hypertension diseases.
24. The appellants (OPs) have filed Certificate of Doctor. In the above Certificate in Column the primary cause of death of the deceased is mentioned Cardiorespiratory arrest and another cause is mentioned as Diabetes Mellitus type two. In the proposal form filed by the appellants (OPs) in Clause 11 thereof, questions were asked regarding treatment taken by the life assured. A question was asked from him that was he treated in the hospital on any previous occasion either as an in-patient or an out-patient, in reply to which the life assured had given answer in negative form i.e. "No".
25. From bare perusal of Certificate issued by Dr. Manish Kumar, which has been filed by the respondent (complainant) herself in respect of life assured Parmeshwar Prasad Gupta, it appears that he was //20 // suffering from Diabetes Mellitus since 20 years and Hypertension since 2 years prior to obtaining insurance policy, but he did not disclose the above facts while making proposal statement and has violated the terms and conditions of the insurance policy, therefore, the appellants (OPs) have rightly disallowed the claim of the respondent (complainant). The respondent (complainant), is not entitled for insurable benefit under the insurance policy, therefore, the respondent (complainant) is also not entitled to get any amount from the appellants (OPs) under the insurance policy.
26. On the basis of above discussions, it appears that the finding recorded by the District Forum, is erroneous and not sustainable in eye of law, and is liable to be set aside.
27. Hence the appeal filed by the appellants (OPs) is allowed and the impugned order dated 25.11.2016, is set aside. Consequently, the complaint stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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