State Consumer Disputes Redressal Commission
Sangeeta Kaushik Alias Satya Bhama vs Life Insurance Corporation Of India on 17 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.332 of 2004
Date of institution: 25.03.2004
Date of decision : 17.11.2009
1. Sangeeta Kaushik alias Satya Bhama widow of Shri Vijay Kumar Kaushik
resident of Near Roy Hospital, Ward No.4, Maur Mandi, District Bathinda.
2. Manu Kaushik minor aged about 16 years;
3. Bhaskar Kaushik minor aged about 14 years;
4. Keshav Kaushik minor aged about 13 years;
Through their mother and natural guardian Smt.Sangeeta Kaushik alias
Satya Bhama widow of Shri Vijay Kumar Kaushik resident of Near Roy
Hospital, Ward No.4, Maur Mandi, District Bathinda.
.....Appellants
Versus
1. Life Insurance Corporation of India, Model Town, Jalandhar through its
Senior Divisional Manager.
2. Life Insurance Corporation of India, G.T. Road, Moga through its Branch
Manager.
....Respondents
3. Savitri Devi w/o Rohit Kumar, Near Roy Hospital, Ward No.4, Maur
Mandi, District Bathinda.
...Proforma respondent
First Appeal against the order dated 23.02.2004
passed by the District Consumer Disputes
Redressal Forum, Moga.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Lt.Col. Darshan Singh (Retd.), Member
Shri Piare Lal Garg, Member Present:-
For the appellants : Shri Mukand Gupta, Advocate For respondents No.1 &2 : Shri Deepak Arora, Advocate For respondent No.3 : Ex parte JUSTICE S.N.AGGARWAL, PRESIDENT Vijay Kumar Kaushik husband of Sangeeta Kaushik appellant No.1 and father of Manu Kaushik, Bhaskar Kaushik and Keshav Kaushik appellants First Appeal No.332 of 2004 2 No.2 to 4 had taken the life insurance policy from the respondents on 28.4.2000 for a sum of Rs.5 lacs. Said Vijay Kumar Kaushik died on 15.8.2001. The insurance claim was lodged with the respondents. It was repudiated by the respondents vide letter dated 28.8.2002. Alleging deficiency in service on the part of the respondents, the appellants filed the complaint against them in the learned District Consumer Disputes Redressal Forum, Moga (in short "District Forum") for insurance claim. Compensation, interest and costs were also prayed.
2. Savitri Devi mother of Vijay Kumar Kaushik was impleaded as respondent No.3.
3. The respondents filed the written reply. It was admitted that Vijay Kumar Kaushik had taken the insurance policy from the respondents for a sum of Rs.5 lacs with the commencement date as 28.4.2000. He had also earlier taken the insurance policy for a sum of Rs.50,000/- which had lapsed due to non payment of the premium. It was got revived by the life assured on 5.3.2001. It was admitted that the life assured had died on 15.8.2001. The insurance claim was lodged by the appellants for both the insurance policies and the insurance claim in both the policies were repudiated vide letter dated 28.8.2002.
4. It was further pleaded that earlier Sangeeta appellant No.1 filed the complaint in the learned District Forum, Moga for the payment of only one of the policies and not for the policy of Rs.5 lacs which was being claimed by her in the present complaint. Therefore, the present complaint is barred by the provisions of Order 2 Rule 2 CPC.
5. It was further pleaded that at the time of filling the proposal form, the life assured was suffering from Diabetes Mellitus Type - II. It was suppressed by him and was not disclosed in the proposal form. Therefore, the respondents were entitled to repudiate the insurance claim. The repudiation was legal and valid. Hence, dismissal of the complaint was prayed.
6. Sangeeta appellant No.1 filed her affidavit Ex.A1. She also filed her subsequent affidavit Ex.A2. The appellants also proved documents Ex.A3 to First Appeal No.332 of 2004 3 Ex.A12. They also proved documents Ex.C/1 to Ex.C/4. On the other hand, respondents No1. and 2 filed the affidavit of Amarjit Singh Sud, Manager (Claims) as Ex.R1. They also proved documents Ex.R/2 to Ex.R/7. Savtri Devi respondent No.3 also filed her affidavit as Ex.R1 (doubly marked).
7. After considering the pleadings of the parties and the affidavits/documents produced on the file by them, the learned District Forum dismissed the complaint vide impugned order dated 23.2.2004.
8. Hence, the appeal.
9. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 23.2.2004 be set aside and the respondents be directed to make the payment of the insurance claim.
10. Record has been perused. Submissions have been considered.
11. Admittedly, Vijay Kumar Kaushik had taken the life insurance policy from the respondents by filling the proposal form on 31.3.2001 (Ex.R2) with effect from 28.4.2000. He had answered the questions in Column No.11 as under : -
"Questions
11.(a) During the last 5 yrs. did you consult a medical practitioner for any ailment requiring treatment for more than a week? Ans. No
(e) Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy or any other disease?
Ans. No
(i) What has been your usual state of health?
Ans. Good"
12. The submission of the learned counsel for the appellants was that Vijay Kumar Kaushik was totally blind and therefore, he did not know as to what was being filled in the proposal form by the agent of the respondents. First Appeal No.332 of 2004 4
13. This submission has been considered.
14. The totality of the circumstances has to be considered in order to find whether the life assured had filled this proposal form with fraudulent intention or innocently or some agent of the respondents had filled this form without the knowledge of the insured. The very fact that the proposal form was filled on 31.3.2001 and the commencement date was made as 28.4.2000 i.e. about 11 months back leads to the presumption that the proposal form was not filled and signed by the deponent with clean intention. Atleast, it is not disputed by the appellants that the commencement date was shown as 28.4.2000 with the consent of the life assured and, therefore, taking of the commencement date back by 11 months clearly shows that the life assured had to conceal something and his intention was also malafide.
15. If the commencement date was taken back by 11 months with the consent of the life assured, it is not possible to believe that the other columns were filled without the consent of the life assured or without his knowledge. Therefore, it means that the life assured himself was the author of the proposal form dated 31.3.2001 including answers to Column No.11.
16. In order to prove that the life assured was suffering from a medical problem of serious nature, the respondents have proved the certificate of hospital treatment in form No.3816 issued by DMC and Hospital, Ludhiana as Ex.R/4. This document revealed that Vijay Kumar Kaushik life assured was admitted in this hospital on 15.8.2001. He had died on the same day. He was blind for the last 7 years and he was suffering from Diabetes Mellitus Type-II for the last one year.
17. The submission of the learned counsel for the appellants was that there is no affidavit/document of the doctor who filled this form nor the history of the deceased was mentioned against column No.7A of Ex.R4. Hence, it was submitted that it was not a valid piece of evidence.
18. This submission has been considered.
First Appeal No.332 of 2004 5
19. It is mentioned against column No.5-B of Ex.R4 that the history of the patient was given by the father of Vijay Kumar Kaushik life assured. Column No.7 reads as under : -
"7. Was there any other disease illness which preceded or co-existed with the ailment at the time of the patient's admission into the hospital? If so, what it? Please give details"
20. Against this column, it was mentioned that the patient was blind for 7 years and he had Diabetes Mellitus Type-II for 1 year. No doubt, against column No.7A, it was mentioned that the history was not in records. However, the history was given in this form against column No.7 itself that the patient was suffering from Diabetes Mellitus Type-II for the last one year.
21. The patient was admitted in this hospital on 15.8.2001 and he died on the same day. As per the entries in this document, the life assured was suffering from Diabetes Mellitus for the last one year. It means that he was suffering from Diabetes Mellitus Type-II since 15.8.2000. The proposal form Ex.R2 was filled by the life assured on 31.3.2001. Therefore, the life assured was suffering from the disease of Diabetes Mellitus Type-II even prior to the filling of the proposal form on 31.3.2001. It appears that apprehending danger to his life, the life assured preponed the date of commencement to 28.4.2000 possibly knowing well that he was suffering from Diabetes Mellitus Type-II since August, 2000. Therefore, the commencement date was intentionally brought back by him i.e. prior to the start of the disease although the proposal form was filled in March, 2001. This clearly shows that the intention of the life assured was not clean when he filled the proposal form.
22. This certificate has been given by the functionaries of the DMC and Hospital, Ludhiana. They had no interest in the respondents nor they were inimical to the appellants nor they had any motive to issue a false certificate. Therefore, even if the certificate of the officials who filled the proposal form is not supported First Appeal No.332 of 2004 6 by their affidavits, it does not take away the beneficiary value of the document. The Hon'ble Supreme Court in the judgment reported as "Satwant Kaur Sandhu v. New India Assurance Company Ltd." 2009 CTJ 956 (Supreme Court) (CP) was pleased to hold as under:-
".................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. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorizes the insurer to seek information from any hospital he had attended or may attend concerning any disease or illness which may affect his health."
23. Therefore, this document is a valid piece of evidence. Diabetes Mellitus Type-II has been defined in the Medical Dictionary as under : -
"Diabetes Mellitus : In this condition pancreas is not able to produce sufficient insulin to neutralize sugar. As a result the level of glucose in blood becomes higher. It results in fatigue due to excessive urination, thirst and hunger. Insulin-dependent diabetes is more severe appearing before the age of 35. It develops very rapidly. Insulin secreting cells known as beta cells are First Appeal No.332 of 2004 7 being destroyed without regular insulin injection person may go under coma and dies. The other which is common develops after the age of 40 and is known as non-insulin dependent type II. It develops slowly and is generally discovered during routine medical examination. In such cases insulin is not required and mostly dietary measures, weight reduction and oral tablets keep the person fit. It runs in families. Obesity is the predisposing factor, certain illness i.e. pancreatitis, corticosteroids and some diuretics, infections, pregnancy may also precipitate it. The aim of treatment is to prolong life, relieve symptoms and prevent long-term complications. Regular physical activity will help. Commonest complications are retinopathy, neuropathy and nephropathy."
24. Therefore, Diabetes Mellitus-II was a serious disease and its concealment amounted to suppression of a material fact.
25. The next submission of the learned counsel for the appellants was that this disease had no direct nexus with the cause of death of the insured. Therefore, even if the information about Diabetes Mellitus Type-II is not given that is no ground to repudiate the claim.
26. This submission has been considered.
27. It has no merit. It was held by the Hon'ble Supreme Court in the judgment reported as "Mithoolal Nayak v. Life Insurance Corporation of India"
AIR 1962 Supreme Court 814 that if a material information is withheld by the life assured then the insurance companies have the right to repudiate the claim. It was held by the Hon'ble Supreme Court in Satwant Kaur Sandhu's case (supra) that any material information withheld by the life assured gives the right to the insurer to repudiate the claim. Even if the disease of Diabetes Mellitus Type-II did not First Appeal No.332 of 2004 8 have any co-relation with the cause of death of the life assured but that disease was fatal in itself.
28. The concealment of material fact itself authorises the insurance companies to repudiate the insurance claim.
29. The next submission of the learned counsel for the respondents was that earlier also, the appellants filed the claim with regard to the other insurance policy of Vijay Kumar Kaushik but at that time, this claim was not added in the said complaint and, therefore, fresh complaint with regard to another claim is barred by the provisions of Order 2 Rule 2 CPC.
30. On the other hand, the submission of the learned counsel for the appellants was that since the respondents had already made the payment of the second insurance policy, therefore, they have no right to hold back the payment of the other policy of the same life assured.
31. This submission has been considered.
32. Even if the claim with regard to this insurance policy was not included by the appellants in the previous complaint filed by them, the appellants have a separate cause of action with regard to this policy. The respondents had not taken any objection in not making the insurance claim of this insurance policy. On the other hand, they accepted the insurance claim and made the payment. Therefore, the facts of the other policy were confined to its own decision and could not be used for accepting this complaint or rejecting the same. This complaint/appeal has to be decided on its own facts and on the documents/affidavits produced by the parties.
33. Since the life assured had concealed the material fact of the disease of Diabetes Mellitus Type-II from which he was suffering while filling the proposal form, therefore, the appellants are not entitled to any insurance claim. There is no illegality in the impugned judgment dated 23.2.2004.
34. In this context, the learned counsel for the appellants made reference to the judgment of Hon'ble Rajasthan State Consumer Disputes First Appeal No.332 of 2004 9 Redressal Commission, Jaipur reported as "Life Insurance Corporation of India and another v. Manju Devi, 2009 (1) CLT 695" and submitted that ex-gratia payment be made to the appellants.
35. This submission has been considered.
36. The facts of Manju Devi's case (supra) were also identical as were discussed by the Hon'ble Rajasthan Commission as under : -
"27. As per past history recorded in the bed head ticket, the deceased was suffering from COPD with coronary pulmonale tubercular ascitis and as per medical science, it could easily be said that a person, who is suffering from COPD means that he was patient of that disease for the last at least three years and such disease could not be developed within a month or two and, thus, it can reasonably be inferred or presumed or concluded that at the time of taking the policy in question, the deceased was award of the fact that he was suffering from the disease of COPD, but he deliberately and intentionally did not disclose that fact in his declaration form dated 2.10.2004 and thus, he was guilty of suppression of material facts regarding health."
37. The Hon'ble Rajasthan Commission while declining the insurance claim awarded Ex-gratia amount of Rs.20,000/- by observing as under : -
"29. However, looking to the entire facts and circumstances of the case and on humanitarian consideration, this State Commission thinks it just and proper to award ex gratia amount to the tune of Rs.20,000 to the complainant respondent, who is a widow."First Appeal No.332 of 2004 10
38. The appellants are also allowed Ex gratia amount of Rs.20,000/- as just and proper and on humanitarian grounds as appellant No.1 is a widow and she is to bring up her children.
39. In view of the discussions held above, this appeal is dismissed except for the grant of Ex-gratia amount of Rs.20,000/- to the appellants.
40. The arguments in this appeal were heard on 12.11.2009 and the orders were reserved. Now the order be communicated to the parties.
41. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (LT. COL. DARSHAN SINGH-RETD.) MEMBER (PIARE LAL GARG) MEMBER November 17, 2009.
Paritosh