State Consumer Disputes Redressal Commission
Sunil Kumar vs Bajaj Allianz Life Ins.Co. & Ors. on 26 October, 2009
APPEAL NO: 35/2008 Sunil Kumar Sharma s/o Babulal Sharma r/o Bhusawar Gate, Teh. Weir, Distt. Bharatpur. Complainant-appellant Vs. 1. Bajaj Allianz Life Insurance Co. Ltd. regd.office G.1 Plaza, Airport Road, Yarvada Pune through MD 2. Br.Manager, Bajaj Allianz Life Insurance Co. Ltd. First floor, 48/06 Puneet Vrindavan Sanjay Palace, Agra. 3. Br.Manager, Bajaj Allianz Life Insurance Co. Ltd. Near Kanni Gurja Chauraha, Bharatpur. Opposite parties-respondents Date of judgment 26.10.09 Before: Mr.Justice Sunil Kumar Garg-President Mr.Sikander Punjabi -Member
Mr.Brijesh Dhabai counsel for the appellant Mr.Rohit Saxena counsel for the respondents BY THE STATE COMMISSION 2 This appeal has been filed by the complainant appellant against order dated 19.11.07 passed by the District Forum, Bharatpur in complaint no. 321/06 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint before the District Forum,Bharatpur on 19.9.06 inter alia stating that his father Babulal Sharma now deceased had taken a life insurance policy from the respondents for a sum of Rs.1 lac bearing policy no.15665998 on 30.01.06 and that policy had come into force w.e.f. 28.1.06 It was further stated in the complaint that the condition of the deceased had suddenly became deteriorated on 7.2.06 and he was got admitted in the RBM Hospital, Bharatpur where he had died on 9.2.06. It was further stated in the complaint that after the death of the deceased claim was preferred by the complainant appellant being the son and nominee of the deceased before the office of the respondents but that claim was repudiated by the respondents through letter dated 28.7.06 in the following manner-
" The company had covered the risk for the above said policy on the basis of the facts mentioned in the proposal form. However on receiving the death claim intimation for the 3 above said policy, the various medical reports and hospital certificate clearly reveal that deceased LA was a follow up case of COPD Corpulmonale and Syncope since 20.1.06. These facts known to the deceased were not disclosed in the proposal form dated 31.1.06. Had these facts been disclosed, the company would not have covered the risk for the above said policy.
Hence, the claim has been repudiated for non-disclosure of material facts."
Thereafter the present complaint was filed.
A reply was filed by the respondents before the District Forum,Bharatpur on 20.1.07 and in the reply they have taken the same pleas which were taken by them in the repudiation letter dated 28.7.06. Apart from that it was stated in the reply that on 20.1.06 the deceased had taken the treatment from Dr. Girdharilal Agarwal and since the death of the deceased had taken place for the disease of COPD and therefore, on the date of filling in up the declaration form regarding his health on 31.1.06, the deceased was aware of the fact that he was a patient of COPD and further the policy had come into force w.e.f. 4.2.06 and the deceased had died on 9.2.06 and thus it was a case of suppression of material facts regarding health on the part of the 4 deceased and it was prayed that complaint of the complainant be dismissed as claim of the complainant was rightly repudiated by the respondents.
After hearing the parties, the District Forum, Bharatpur through impugned order dated 19.11.07 had dismissed the complaint inter alia holding-
(i) That in this case since the respondents had proved the fact that before filing in up the declaration form on 31.1.06 the deceased had taken treatment from Dr.Girdharilal Agarwal on 20.1.06 for the disease of COPD and the deceased was admitted in the RBM Hospital, Bharatpur on 7.2.06 for the same disease and had died and therefore, it is well proved that prior to 31.1.06 the deceased was a patient of COPD and thus it was a case of suppression of material facts regarding health on the part of the deceased.
(ii) That the respondents were justified in repudiating the claim of the complainant appellant.
Aggrieved from the said order dated 19.11.07 passed by the District Forum, Bharatpur this appeal has been filed by the complainant appellant.
3. In this appeal, the main contention of the learned 5 counsel for the appellant complainant is that since the deceased was not aware of the fact that he was a patient of COPD (Chronic Obstructive Pulmonary Disease ) at the time of filling in up the declaration form regarding his health on 31.1.06 and hence, repudiation of claim of the complainant appellant by the respondents was wholly illegal and arbitrary and in view of this the findings of the District Forum dismissing the complaint of the complainant appellant could not be sustained as they suffer from basic infirmity, illegality and perversity and it was prayed that appeal be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellant as well as for the respondents and gone through the entire materials available on record.
6. There is no dispute on the point that the deceased had taken a life insurance policy from the respondents for a sum of Rs.1 lac bearing policy no.15665998 on 31.01.06 and that policy had come into force w.e.f. 28.1.06.
7. There is also no dispute on the point that at the time of taking the policy a declaration was made by the deceased and in that declaration on 31.1.06 , he had not mentioned that he was suffering from any kind of disease .
68. There is also no dispute on the point that deceased had died on 9.2.06 meaning thereby within five days of issuance of the policy.
9. There is no dispute on the point that the claim of the above mentioned policy was repudiated by the appellants through letter dated 28.7.06 on the grounds mentioned therein.
10. On file there is a prescription slip of Dr.Girdharilal Agarwal dated 20.1.06 in which it was stated that it was a case of COPD and further the deceased was got admitted in the RBM Hospital, Bharatpur on 7.2.06 and the disease which was found mentioned in the hospital record was COPD and similarly the same disease was diagnosed by Dr.Girdharilal Agarwal on 20.1.06.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. It may be stated here that as per prescription slip dated 20.1.06 of Dr.Girdharilal Agarwal the deceased was a patient of COPD and as per medical science, the disease of COPD could not develope within few days and since this disease affects the vital part of the body i.e. lungs, therefore, it could 7 not be said that the disease of COPD is a trivial disease and since as per prescription slip of Dr.Girdharilal Agarwal dated 20.1.06, it was found mentioned that the deceased was a patient of COPD , therefore, it was the duty of the deceased to have mentioned that disease in his declaration form dated 31.1.06 regarding his health and thus, non-mentioning of the disease of COPD in the declaration form dated 31.1.06 regarding health by the deceased would amount to suppression of material facts regarding health on the part of the deceased .
13. Not only this the deceased was admitted in the RBM Hospital, Bharatpur on 7.2.06 and the disease of COPD was diagnosed, meaning thereby the disease of COPD was an old disease and thus at the time of taking the policy in question i.e. on 31.1.06, the deceased was aware of the fact that he was suffering from the disease of COPD and the deceased had deliberately and intentionally did not disclose that fact in his declaration form dated 31.1.06 and thus, he was guilty of suppression of material facts regarding his health.
13. In our considered opinion, there are certain diseases such as kidney, heart, lungs and brain and they are connected with the life span of a person and if any misstatement is made in respect of such type of diseases by the person seeking insurance, in such case, it can be believed that knowingly the person taking out the insurance has made misstatement and since the disease of COPD is also a serious disease affecting the lungs and lungs are very vital part of the body and thus non-mentioning of that disease in the declaration form regarding health on 31.1.06 by 8 the deceased would certainly amount to suppression of material facts regarding health on the part of the deceased .
14. It may further be stated here that when the answer was given in negative and when there is ample evidence to prove the fact that the deceased had taken the treatment of COPD prior to filling in up the declaration form dated 31.1.06 regarding his health, therefore, from every point of view the present case would be a case of suppression of material facts regarding health on the part of the deceased.
15. For the reasons stated above, it is held that repudiation of claim of complainant appellant by the respondents through letter dated 28.7.06 on ground of suppression of material facts regarding health by the deceased was justified and no illegality or irregularity has been committed by the respondents in repudiating the claim of complainant appellant and in view of this, the findings of the District Forum dismissing the complaint of the complainant appellant are liable to be confirmed as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity, illegality or perversity and this appeal deserves to be dismissed .
16. During the course of arguments the learned counsel for the complainant appellant has stated that in case the appeal of the appellant is going to be dismissed, in such circumstances some amount of compensation as ex-gratia be allowed to the 9 complainant appellant.
17. In our considered opinion, this prayer of the learned counsel for the complainant appellant could not be accepted because of the simple reason that the complainant appellant is not a widow but he is the son of the deceased and looking to the facts and circumstances of the case, he is not entitled to ex-gratia payment.
17. In view of the discussions made above, the appeal filed by the complainant appellant is dismissed.
Member President APPEAL NO: 2258/2004 Life Insurance Corporation of India through Sr.Divisional Manager, "Jeevan Prakash" Ranadey Marg, Post Box no. 2, Ajmer. Opposite party-appellant Vs. Smt.Shanta Devi w/o Lt.Sh.Kaluji Khateek r/o Momeen Mohalla, Sanganer Teh. & Distt. Bhilwara. Complainant-respondent 26.10.09 Before: Mr.Justice Sunil Kumar Garg-President Mr.Sikander Punjabi -Member Mr.Ramkalyan Sharma counsel for the appellant Mr.Rajesh Mootha counsel for the respondent BY THE STATE COMMISSION This
appeal has been filed by the appellant LIC against order dated 29.10.04 passed by the District Forum,Bhilwara in complaint no. 218/03 by which the complaint of the complainant respondent was allowed in the manner that the appellants were directed to pay a sum of Rs. 50,000/- as the amount insured in respect of policy no.184466056 alongwith interest @ 9% p.a. 2 w.e.f.
5.6.03 and further to pay Rs. 1000/- as compensation and Rs. 1000/- as amount of costs.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum, Bhilwara on 5.6.03 inter alia stating that her husband Kalu Khateek now deceased had taken a life insurance policy for a sum of Rs. 50,000/- from the appellants bearing policy no. 184466056 on 10.2.01 and the policy was for the period of 20 years. It was further stated that the deceased had died on 27.4.02 and after the death of the deceased claim was preferred by the complainant being the wife and nominee of the deceased but that claim was repudiated by the appellants through letter dated 24.2.03 on the ground that before taking the policy in question the deceased had filled in up a declartion form regarding his health on 12.2.01 in which he had not mentioned that he was suffering from any kind of disease but they had the sufficient proof to prove the fact that before ten years of taking the policy the deceased was suffering from the disease of TB and had consulted the medical man and had taken the treatment from the doctor and since these facts were not disclosed by the deceased in his declaration form on 12.2.01 at the time of taking the policy, therefore, the deceased was guilty of suppression of material facts regarding his health. Thereafter the present complaint was filed.
A reply was filed by the appellants on 9.12.03 and in the reply they have taken the same pleas which were taken 3 by them in the repudiation letter dated 24.2.03 It was further stated in the reply that the deceased had consulted Dr.S.N.Jagethia on 25.4.02 and on the same day he was got admitted in the Govt. Hospital, Bhilwara and the disease of TB was diagnosed by the doctors and in the bed head ticket of the hospital it was mentioned that he was a patient of TB for the last ten years and therefore, it was a case of suppression of material facts regarding health on the part of the deceased and it was prayed that claim was rightly repudiated by the appellants and complaint be dismissed.
After hearing the parties, the District Forum,Bhilwara through impugned order dated 29.10.04 had allowed the complaint inter alia holding -
(I) that no doubt in the bed head ticket of the Govt. Hospital, Bhilwara it was mentioned that the deceased was a patient of TB for the last ten years but since in the certificate which was issued by the doctor of that hospital it was mentioned that he might be a patient of TB for the last ten years but the complications had arisen three months before the death of the deceased and apart from that there was no other evidence on record to prove the fact that the deceased had taken the treatment of TB prior to filling in up the declaration form regarding health and thus it was found that the present case was not a case of suppression of material facts on the part of the deceased regarding his health.
(ii) That repudiation of claim of the complainant 4 respondent by the appellants was not justified and it amounted to deficiency in service on the part of the appellants.
Aggrieved from the said order dated 29.10.04 passed by the District Forum,Bhilwara this appeal has been filed by the appellants.
3. In this appeal the main contention of the learned counsel for the appellants is that before issuance of policy in question, the deceased was suffering from the disease of TB for which he took medical treatment from the doctor and since these facts were not disclosed by the deceased deliberately in his declaration form on 12.2.01 , therefore, he was guilty of suppression of material facts regarding health and thus on that ground the claim of the complainant respondent was rightly repudiated by the appellants through letter dated 24.2.03 and the District Forum had committed serious error and illegality in decreeing the claim of the complainant respondent. Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand the learned counsel appearing for the respondent has supported the impugned order of the learned District Forum.
5. We have heard the learned counsel appearing for the parties and have gone through the entire materials available on record.
6. There is no dispute on the point that the deceased had taken a life insurance policy for a sum of Rs. 50,000/- from the 5 appellants bearing policy no. 184466056 on 10.2.01 and the policy was for the period of 20 years.
7. There is also no dispute on the point that at the time of taking insurance policy , a declaration was made by the deceased and in that declaration on 12.2.01 , he had not mentioned that he was suffering from any kind of disease or had taken any treatment from any hospital.
8. There is also no dispute on the point that the claim of the complainant respondent was repudiated by the appellants through letter dated 24.2.03 on the ground mentioned therein as stated above.
9. There is also no dispute on the point that the deceased had died on 27.4.02 meaning thereby within two years of the issuance of the policy.
10. From the record it is well established that the deceased had consulted Dr.S.N.Jagethia on 25.4.02 for the first time and on the same day he was got admitted in the Govt. Hospital, Bhilwara and the disease of TB was diagnosed by the doctors though the declaration form regarding health was filled in up by the deceased on 12.2.01 .
11. Thus,in the facts and circumstances just narrated above, the question for consideration is whether repudiation of claim of complainant respondent by the appellants on ground of suppression of material facts was justified or not or whether the findings of the District Forum decreeing the claim could be sustained or not.
612. It may be stated here that sometimes in villages a person may be suffering from illness such as cough, cold and fever and some times they run longer and becomes the disease of TB but since in the present case the disease of TB was diagnosed by the doctors for the first time on 25.4.02 and the declaration form regarding health was filled in up by the deceased on 12.2.01, therefore, it could not be said that the deceased was aware of the fact that he was a patient of TB .
13. Further the disease of TB could only be diagnosed when X-ray of the chest is done and test of sputum is done in the laboratory and in absence of these two tests, it could not be said that a person was a patient of TB and in this case there is nothing on record to prove the fact that the deceased had undergone for above two tests and in absence of that simply on the basis of past history it could not be taken for granted that the deceased was a patient of TB prior to filling in up the declaration form on 12.2.01 regarding health on the part of the deceased.
14. In our considered opinion since prior to 12.2.01 the date on which declaration form was filled in up by the deceased, there is nothing on record to show that the deceased had ever taken treatment from any hospital in respect of TB. Not only this there is nothing on record to show that prior to 12.2.01 the deceased was ever admitted in any hospital for taking the treatment.
15. It may be stated here that the past history recorded in the bed head ticket of the hospital could not be trated as primary piece of evidence to prove any fact unless and until the doctor who had recorded that history had been produced and primary evidence would be of the doctor who had recorded the information in the 7 bed head ticket. For that law laid down in the case of LIC Vs. Dr. P.S.Agarwal reported in NCJ 2005 181 (NC) may be referred to.
16. In this case the doctor who had recorded the past history had not been produced and,therefore, no reliance could be placed on past history recorded in the bed head ticket.
17. Since in the present case there is no documentary proof or evidence available on record to show that the deceased was admitted in any hospital for taking the treatment of TB disease prior to filling in up the declaration form on 12.2.01 , it could not be said that the deceased was guilty of suppression of material facts about his health. No doubt in bed head ticket it was mentioned that the deceased was suffering from the disease of TB for the last ten years but to corroborate to prove that entry, no documentary proof or evidence or material has been produced by the appellant showing that the deceased had earlier taken the treatment of TB in any hospital.
18. Thus, the appellant had misrably failed to produce any document or paper to show that the deceased had taken the treatment for the disease of TB prior to filling in up the declaration form, therefore, it could not be said that it was a case of suppression of material facts regarding his health on the part of the deceased.
16. For the reasons stated above, the repudiation of the claim of the complainant respondent was not justified and the repudiation has been made on the basis of wrong assumption and in arbitrary manner and it amounted to deficiency in service on the part of the appellant and the findings recorded by the District Forum are 8 confirmed one as they are based on correct appreciation of entire material available on record and we do not see any illegality in the impugned order and the appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellant is dismissed.
Member President