State Consumer Disputes Redressal Commission
Dr.Thomas.V.Thomas vs Life Insurance Corporation Of India on 23 October, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/11/37 1. DR.THOMAS.V.THOMAS CHERUKARA VADAKKETHUNDIYIL HOUSE,VENKURINJI.P.O ERNAKULAM KERALA ...........Complainant(s) Versus 1. LIC OF INDIA BRANCH OFFICE ,THIRUVALLA PATHANAMTHITTA KERALA ............Opp.Party(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SMT.A.RADHA MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
SISUVIHAR LANE, VAZHUTHACADU THIRUVANANTHAPURAM
CC.No.37/2011
JUDGMENT DTD : 23.10.2013
PRESENT:
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
Dr.Thomas.V.Thomas,
S/o.Late Mathai Thomas,
Cherukara Vadakethundiyil house, COMPLAINANT
Venkurinji.P.O
Kerala, Pin - 686 510,
Now residing at Post Box No.17722,
Philadelphia, PA 19135
USA - 682 011
(By Adv.T.J.Lakshmanan)
Vs.
1. Life Insurance Corporation of India,
Branch office, Thiruvalla,
Rep.by its Branch Manager
2. Life Insurance Corporation of India,
Branch Office,
Chengannur, OPPOSITE PARTIES
Represented by its Branch Manager
3. Life Insurance Corporation of India,
Jeevan Prakash,
PB.No.609, Divisional Office,
Nagampadam, Kottayam - 1
Represented by its Divisional Manager
(By Adv.Narayana Iyer. S & Others)
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER This is a complaint filed Under Section 17 of the Consumer Protection Act. The allegations in the complaint are that the complainant had taken three insurance policies from the opposite parties. The first policy commenced on 28.07.94 and the sum insured was Rs.1 lakh. The complainant had paid premium of Rs.1,419/-. Premium at the same rate has to be paid on quarterly basis. The maturity date of the policy is on 28.07.2014. The second policy for Rs.1 lakh commenced on 21.07.2003 and the accident benefit sum insured was Rs.1 lakh. The total premium paid is Rs.11,669/-. The premium has to be paid on yearly basis and the date of maturity is on 21.07.2018. The 3rd policy commenced on 28.03.2005 and the sum insured was Rs.50 lakhs. The complainant paid Rs.1,43,325/- as premium for the said policy. The premium has to be paid on quarterly basis and the maturity date of the policy is on 28.03.2016. Before taking the policies the complainant had disclosed the entire medical details relating to him to the opposite parties and he had also handed over all medical records pertaining to him. The complainant had an injury on the back side of his chest (below neck). Before taking policy the complainant had disclosed the said injury to the opposite parties and also handed over the medical records related to the said injury. The Development Officer and the agent of the opposite parties who approached the complainant for canvassing the policy had told him that the complainant had to sign the proposal and all other particulars in the proposal would be filled by them after going through the medical records of the complainant. The complainant told the Development Officer and the agent that he would fill the proposals and submit before the opposite parties. But they told the complainant that he need sign the proposal and the other particulars would be filled by them. Believing their assurance the complainant signed the proposal and submitted it to them. Moreover before taking the policy in the year 2005 the complainant had undergone medical check up and the medical examination was conducted by the Doctor approved by the opposite parties at Chenganoor. At that time complainant discussed the neck injury with the doctor and the said doctor examined the said area. After accepting the proposals and premium the respondents had issued the above mentioned policies to the complainant. While taking the policy the agent and the Development Officer assured the complainant that many non residents are taking policy and since the LIC has agreement in Switzerland, Geneva with the insurance companies, the complainant is protected by them even though the complainant lives in USA.
2. The complainant had met with an accident in USA, in the year 2007 (November 23rd) and up to that time the complainant was working, but due to the injury sustained in the accident he became disabled to do the work which he was doing before the accident. The complainant was practising as a behavioral specialist (Psychology & counseling) in USA and after the said accident he is not in a position to serve his patients. After the said incident the Social Security Administration, USA declared that the complainant has become disabled to do his profession, and the said declaration was done on 28.05.2008. The said Administration also allowed $ 795 to the complainant on every month and the said amount is given as a disability benefit to the complainant since he became disabled to do his profession. After the accident the complainant became disabled to do the work and he is not in a position to continue his profession as a behavioral specialist.
3. After the accident the complainant submitted a claim form before the opposite parties with all medical records for the benefits under the above mentioned policies. The policies issued to the complainant cover the disability benefits. Even after acknowledging the claim form and the records from the complainant the opposite parties were not ready to consider the claim of the complainant. Finally, on 29.07.2010, the 2nd opposite party sent a letter to the complainant stating that they are not in a position to consider the claim of the complainant. The reason stated for repudiation is not all sustainable. The first reason stated by the 2nd opposite party was that the complainant was suffering from neck pain, low back pain and elbow pain and this information was not disclosed in the proposal when insurance was taken in the year 2000. The said finding of the 2nd opposite party is absolutely false. The first policy was taken by the complainant in the year 1994 and all the details were disclosed in the proposal. There is no case for the 2nd opposite party that he suppressed anything in the year 1994 when the first policy was taken. It is further submitted that the complainant had handed over all the medical records pertaining to his health to the agent and the Development Officer, who approached him for canvassing the policy and they assured that they would fill the proposal and the complainant was only to sign the proposal. Moreover, the opposite parties had collected more premiums from the complainant and the reason said for collecting high premium was that the complainant had injury. Reasons 2 & 3 are stated in repudiation letter without proper application of mind. The finding of the Social Security Administration in USA was based on the medical records furnished by the complainant and after examination by their panel physician. After doing so the administration found that the complainant is not in a position to do his profession. The 4th reason for repudiation is also stated without proper application of mind. Against the conclusions of the second opposite party, the complainant approached the Zonal office of the opposite parties at Chennai. They also rejected the claim of the complainant. Though the complainant is disabled from continuing his profession the opposite parties failed to provide the benefit of waiver of future premiums as provided in the insurance policies. When approached the opposite parties failed to grant any relief to the complainant. Hence the present complaint. The reliefs sought are a direction to the opposite parties to disburse total insured sum of Rs.52 lakhs as per the three policies with interest, to direct the opposite parties to grant disability benefits to the complainant as stated in the policies, to direct payment of Rs.25,000/- towards mental agony suffered by him and to direct the opposite parties to pay cost of the proceedings.
4. Joint version is filed on behalf of the opposite parties raising the following contentions. The complainant has suppressed material facts and has alleged falsehood in the complaint. The allegation that three policies were issued in favour of the complainant by the LIC of India is admitted. The first policy with sum assured of 1 lakh commenced on 28.07.1994 and the period of the policy was 20 years. Premium was payable yearly at the rate of Rs.5502/- till the date of maturity on 28.07.2014 or till death of the assured. But the life assured has paid premium on the policy only till 28.07.2009 and the policy is in a lapsed condition. The second policy for sum assured of Rs.1 lakh commenced on 21.07.2003 and was for a term of 15 years. The premium was payable once in every year till the date of maturity and amount of premium was Rs.11,669/-. The life assured has paid premium till 21.07.2009 only and this premium is also in a lapsed condition. The third policy is for a sum assured of Rs.50 lakhs and the risk commenced on 28.03.05. The term of the policy was for 11 years and the premium payable was Rs.1,43,325/- quarterly from March 2005. The date of maturity is on 28.03.2016. But the policyholder has paid premium only till 18.12.07 and hence the policy is in a lapsed condition. These policies were issued in consideration of proposals submitted by the policyholder. The premium on the policies had been arrived at considering the health of the assured his age the amount of sum assured and the terms of the policy.
5. The complainant as per e-mail dated: 17.09.2009 informed the opposite parties that he had met with an accident on 23.11.2007 and he had become disabled to do the work which he was doing and that the Social Security Administration in USA had declared him disabled to do his profession which he was doing. On that ground he claimed disability benefits covered under the policies. He had forwarded xerox copies of certain documents of medical findings regarding his state of health. He had also submitted the claim form duly executed. The LIC of India considered his claim in detail and in good faith. The claim form and the medical records submitted by him were investigated scrutinized and studied in detail. The complainant has stated in the claim form the nature of his disability. Apart from that it was revealed from the records submitted by him that he had underwent laminectomy with cervical fusion of C3 to C7 in the year 2000. Complainant had suffered injuries due to earlier two motor accidents. The medical records relating to his admission in Nazareth Hospital Philadelphia immediately on the alleged slip and fall on 23.11.2007 show that he had not suffered any fracture or dislocation due to such fall. The findings of the Rothman Institute, Philadelphia on 25.04.2007 before the alleged slip and fall, show that the complainant had neck pain and low back pain due to degenerative spine changes and he had tennis elbow. The said records also show that the complainant had previous C2 to C7 laminectomy with fusion. He had Lumbar Spine 4-5, L-5-S1. bulging Discs and mild foraminal stenosis. MRI of cervical Spine showed degenerative arthritis and changes consistent with previous laminectomy and C5-6, C6-7 foraminal stenosis. The Medical Report dated 25.11.2008 of Burstien Medical Associates Philadelphia shows that the complainant is having a small Bakers Cyst of the left knee. The Medical report dated 21.02.2008 of the Broad Street Imaging relating to the magnetic resonance imaging of the left knee of the complainant shows only degenerative changes. The medical report of Donald Ostrum dated: 09.04.2009 shows that the complainant had degenerative disc disease with disc bulging at L3-4, Disc bulging on a degenerative basis at L-4-5 and there is facet arthritis at L4-5 and L5-S1. The Medical report dated 25.09.2009 of Temple University Physicians reveals that the complainant had past history notable for coronary artery disease, reflux hyperlipidemia and that his imbalance is due to numerous medications. Thus it was revealed that the cause of his alleged present disability was not due to the said accident of slip and fall on 23.11.2007.
6. As per the conditions of the policies the LIC of India is bound to allow the disability benefits only if the disability is caused solely due to the result of an accident without the influence of any other factor and only if the disability is total and permanent, such that there is neither then nor at any time thereafter the life assured can do any work, occupation or profession or can earn, or obtain any wages or any compensation or profit. Thus it can be seen that the disability shall be total and permanent (100%) and due to such total disability the life assured is unable to do any work or job or business or profession or any other avocation and he is not able to earn or obtain any money in any way. Further he shall not receive any compensation or profit in regard to that total permanent disability. Further such total permanent disability shall be caused within 180 days from the date of accident. The complainant was not able to prove the alleged accident by any authentic document or evidence except his own claim of his having suffered a fall on 23.11.2007 at USA. The notice of award dated 19.04.2009 of the Social Security Administration in USA clearly states that the complainant became disabled as per their Rules. The said organization is an organization of Retirement Survivors and Disability Insurance. Their Rules and Regulations are not binding on LIC of India and are not having the force of law in India.
7. The complainant has obtained policies by fraudulent suppression of material facts. In the proposal for insurance dated: 14.07.2003 submitted to Thiruvalla Branch Office in respect of policy No.392675764, the life assured had answered " No'' in answer to question Nos. 11(a) and 11 (b). But the medical records submitted by the complainant himself clearly reveal that he had undergone an operation for cervical fusion C3 to C7 in the year 2000. In the proposal for insurance dated: 02.02.2005 for the last policy submitted at Chengannoor Branch Office, the life assured has answered questions 12 (a) and 12(b) in the negative. While the medical records produced show that he had undergone operation for cervical fusion to C3 to C7. The complainant was well aware of the said operation and had deliberately suppressed information to secure policies with high sum assured. He had also suppressed the earlier policies while submitting the proposal for the 3rd policy. It was the duty of the complainant to disclose all facts relating to his health because those facts were exclusively known to him. Had he disclosed the fact of operation for cervical fusion of C3 to C7 the opposite parties would not have issued these policies. Since the complainant made fraudulent mis-representation and suppressed material facts policies issued as per proposals dated: 14.07.03 and 02.02.05 have become void and all money paid there under stood forfeited to LIC of India.
8. The disability benefit as per the policies issued to the complainant is limited to Rs.25 lakhs. He had availed two earlier policies. Had he disclosed the earlier policies the disability benefit under the 3rd policy would have been limited to Rs.23 lakhs. The Social Security Administration, USA is granting the complainant a compensation benefit of $ 795 every month. As per the policy conditions he is not eligible for any disability benefit when he receives such compensation. There was no deficiency of service on the part of the opposite parties. The allegation that the complainant had disclosed all medical details pertaining to him is devoid of truth. The alleged assurances made by the Development Officer and agent are not known to the opposite parties and they had not authorized the said persons to make any such statements or assurances. The allegations against the Development Officer and Agent are made for the first time for the sake of this complaint. After having permitted the agent to fill up the proposal form, the complainant is estopped from raising any allegation regarding the contents in the proposal form. The agent should be deemed to have acted for and on behalf of the complainant. Disability benefits for such policies are granted only if the policy holder is totally and permanently disabled to the extent that he is not able to do any work or to undertake any avocation and unable to earn any livelihood. Further the said total permanent disability should be solely due to the accident without any other cause or causes. The existing ailments of the complainant had also contributed to the present disability and hence it cannot be concluded that the present disability is solely due to the alleged accident. The claim of the complainant is that he is not in a position to continue his profession as behavioral specialist. He has also no claim that he has been totally and permanently disabled to do any other work or avocation or to earn any wages. The claim that medical records were handed over to the agent at the time of proposal, medical examination etc is false. Extra premium of Rs.7.26 per Rs.1000/- sum assured for the 3rd policy was charged taking into consideration the underwriting factors like ECG, X-ray of Chest, Tread Mill Test, Blood reports etc. The complainant under stood the position explained by LIC of India and remitted two further premiums at the rate fixed without any demur or protest. The findings of the Social Security Administration, USA are in no way relevant to the conditions in the policies issued by the LIC of India. The LIC of India is not bound by the decision of the Social Security Administration Retirement Survivors and Disability Organization of USA. The decision to repudiate the claim of the complainant was taken after due application of mind. Hence there was no deficiency in service on the part of the opposite parties. The complainant has no cause of action. The complainant is not entitled to any disability benefit. Since the policies are in a lapsed condition, he is eligible for payment of paid up value on the date of maturity, 28.07.14 which is Rs.80,000/- along with vested bonus allowable of Rs.93000/-. Thus total amount is Rs.1,73,000/-. The said sum is payable on maturity. The complaint is liable to be dismissed.
9. On the above pleadings the following points arise for decision:
1. Whether the complainant sustained permanent disability as a result of fall on 23.11.2007 and was the fall the sole cause of the permanent disability.
2. Whether there was suppression of material facts on the part of the complainant relating to his health while availing the policies.
3. Whether the opposite parties were justified in repudiating the complainant's claim and whether there was deficiency in service on their part.
10. The complainant tendered oral evidence as PW1. Exts. P1 to P8 were marked on his side. One witness was examined on the side of the opposite parties as DW1 and Exts.B1 to B11 were marked on their side.
Point No.1:-
11. The complainant has acquired US citizenship but originally he was having Indian citizenship. He was practicing there as a behavioral Specialist (Psychology & Counselling). Admittedly, he had availed three insurance policies from the LIC of India. The first one is Ext.P1 issued as early as on 28.07.94. The term of the policy is for 20 years with sum assured of Rs.1 lakh. Premium of Rs.Rs.1419/- was payable annually and due date of payment of premium was 28th July every year. The maturity date of the policy is on 28.07.2014. The complainant availed the second policy, Ext.P2 on 21.07.2003. This policy with sum assured of Rs.1 lakh had a term of 15 years. The premium of Rs.1569/- was payably early and the due date for payment of the premium was 21st July every year. Premium of Rs.100/- was also payable towards accident benefits. The last premium is payable on 21.07.2017 and the date of maturity of the policy is on 21.07.2018. The 3rd policy dated: 28.03.2005, Ext.P3 has a term of 11 years. The sum assured is Rs.50 lakhs. Instalment of premium payable is Rs.1,43,325/-. The last date of payment of premium is on 28.12.2015 and the date of maturity of the premium is 28.03.2016. There is dispute regarding the actual amount of disability benefit that can be claimed as per the 3rd policy issued in 2005. This dispute will be referred to later. The terms and conditions of the policies are more or less identical. The complainant claims disability benefit as per Clause10.1 of Ext.P1 as per which if while the policy is in force for the full sum assured prior to the policy anniversary on which the age nearer birthday of the life assured is 70 becomes subject to a disability defined in the policy the LIC agreed to waive payment of future premiums up to an assurance of Rs.20,000/- subject to certain conditions. Clause 10.2 provides for accident benefit and 10.2(a) provides for disability benefit to the life assured. It is mentioned that the payment of monthly instalments spread over 10 years and an additional sum equal to sum assured under the policy would be paid and the payment of entire future premiums would be waived. Clause 10.4 reads: "the disability above referred to must be disability which is the result of an accident and must be total and permanent and such that there is neither then nor at any time there after any work, occupation or profession that the life assured can ever sufficiently do or follow to earn or obtain any wages, compensation or profit. Accidental injuries which independently of all other cause and within 180 days from the happening of such accident result in irrecoverable loss of the entire sight of both eyes or in the amputation of both hands at or above the wrists or in the amputation of both feet at or above ankle or in the amputation of one hand at or above the wrist and one foot at or above the ankle shall also to be deemed to constitute such disability".
12. The relevant terms and conditions in Ext.P2 are more or less identical. It may also be mentioned that the maximum aggregate limit of assurance, in case more policies than one were availed, under all policies is limited to Rs.1 lakh. As indicated earlier regarding the extent of disability benefit as per the 3rd policy there is dispute the opposite parties have produced Ext.B3, copy of the policy. As per this copy which bears the dated seal 13.03.2005, the maximum aggregate limit of assurance in the case of disability to the assured under all policies on the life to which benefit of waiver of premium and payment of disability benefit of instalments apply if there are more policies (as in the present case) shall not in any event exceed Rs.25 lakhs. It is provided. "if there be more policies than one and if the total accident benefit exceeds Rs.25 lakhs, the benefit shall apply to the first Rs.25 lakhs assured in order of date of policies issued''. But as per the same clause in Ext.P3, the disability benefit assured is maximum of Rs.50 lakhs. How this discrepancy happened is not explained while adducing oral evidence and nothing was asked to either PW1 or DW1 regarding this aspect. Further it may be mentioned that Ext.P3 is the photocopy of the duplicate policy and is seen issued on 29.09.2010 and the authenticity of Ext.P3 is doubtful. The insurance company could have produced the original policy itself which would have been submitted along with claim. However, in view of the circumstance mentioned above the contention of the opposite parties that maximum limit of disability claim is only Rs.25 lakhs will have to be accepted.
13. The complainant claims that he had met with an accident while in USA on 23.11.2007. Up to that time he was working as Behavioral Specialist. But due to injury sustained in the accident he became disabled to do the work which he was doing before the accident. After the said incident the Social Security Administration in USA declared that complainant had became disabled to do his profession and said declaration was made on 28.05.2008.The Social Security Administration in USA allowed a payment of $ 795 to the complainant every month as disability benefit. Accordingly, he is claiming disability benefit based on the policies too. The first contention based on the allegation is that a declaration of Social Security Administration in USA was made on 28.05.2008 180 days after the incident. Hence the complainant is not entitled to any disability benefit. We have quoted Clause 10.4 of Ext.B3 in full. The second part of Clause 10.4 refers to accidental injuries which independently of all other causes and within 180 days from the happening of such accident resulting in irreparable loss of sight of both eyes or resulting in amputation of limbs. So the time limit applies to cases of loss of eye sight amputation of limbs etc. There are other permanent disabilities such as paraplegia which may happen immediately on the accident, but final confirmation of which may be made at a later stage after prolonged treatment. Clause 10.4 can not be relied on to rule out such disability as not falling within the purview of disability to the assured merely because the declaration of such disability came after 180 days because such disability exists from the date of accident or immediately there after itself. So the fact of declaration came only later is of no consequence.
14. But there are other serious contentions raised by the opposite parties to be considered in detail. The contentions are that the complainant had obtained Exts.P2 and P3 policies by fraudulent suppression of material facts and deliberate mis-representation and had committed breach of principle of utmost good faith. This aspect is reserved for discussion while considering point no.2. Secondly, it is contended that the complainant has not proved occurrence of the alleged accident. He has not produced authentic record or evidence to prove that his disability is 100% total and permanent and that he would not be able to do any kind of work or avocation, here after and he would not be able to earn anything and thirdly the disability if at all is not entirely due to the alleged accident, but also due to de-generative ailments he had been suffering well before the alleged accident and as a result of two earlier accidents. In short, the alleged disability if any did not solely result from the incident on 23.11.2007. In this regard the complainant during cross-examination admitted that prior to the fall in 2007 he had been under the treatment of Dr.Yejiazhang. So also it appears as is evident from Ext.B11 that alleged disability resulted from a fall and not an accident in true sense of the term. More over he admitted that he had undergone surgery in the year 2000 for C2-C7. Then he had two minor car accidents also. Of course, he claimed that he had informed these facts to the agent of the opposite parties and their doctor, who examined him. He claimed that he had given copies of the records of the treatment also. He was aware of the importance of the above facts while answering the question contained in the proposal. He termed the car accidents minor. The copies of documents given to the LIC by him in this regard were marked as Ext.B6. He had lumbar spine bulging disc problem. He claimed that he had followed the advice given by the doctor.But the instructions were not so important and he was doing well before 23.11.2007.
15. The relevant medical records to be considered in this regard are the following. Ext.P4 ( B5) is the main document on which the complainant relies on to contend that he has became disabled due to permanent disability sustained as a result of the accident on 23.11.2007. It is the copy of notice of award issued by the Social Security Administration retirement survivors and disabilities insurance, Philadelphia. The complainant was told that they had found that the complainant became disabled under their rules on 28.05.2008 and he was entitled to monthly disability benefits beginning from November 2008. He has to be disabled for five full calendar months in a row before he can be entitled to the compensation. For the said reasons, his first month of entitlement to benefits was November 2008. He would receive $ 3885 around 25th April 2009. That was the amount due to the complainant for November 2008 to March 2009. He would receive next payment of $ 795 which was for April 2009 which would be received on or about the 4th Wednesday of May 2009. After that he would receive $ 795 on or about 4th Wednesday of each month. Among the other things to remember for the future he was told thus: "we decided that you are disabled under our rules. Further we must review all disabilities cases. Therefore, we will review your case in 5 to 7 years. We will send you a letter before we start the review. Based on that review your benefits will continue if you are still disabled but will end if you are no longer disabled". Several contentions are raised by the opposite parties based on Ext.P4. Firstly, it is contended that the complainant was declared disabled as per P4. more than 180 days after the incident. There fore under the relevant conditions in the policies issued by the opposite parties, he is not entitled to claim disability benefits. In answer it was submitted that only few days passed after 180 days, when Ext.P4 declaration was made and the delay was due to the formalities to be complied with before making the declaration. What ever that be declaration of an existing disability was made which resulted from an alleged fall on 23.11.2007. As a matter of fact if disability results from the fall that would exist from the date of fall. The extent of disability is likely to diminish by passage of time and treatment and if as a matter of fact disability existed when declaration was made that would not normally affect the case of the complainant that he was disabled within the prescribed period of 180 days. So we are not impressed by this argument of the learned counsel for the opposite parties.
16. The second argument raised is that the Social Security Administration, Philadelphia made declaration that the complainant became disabled as per their rules and regulations. The rules and regulations in India are entirely different. Exts.P1 to P3 policies were issued with definite terms and conditions which govern the parties and under these policies, the disability caused must be total and permanent and nothing of the sort has happened in the case of the complainant. Thirdly, the disability if any is not fully due to the alleged accident but also due to degenerative ailments, he has been suffering from even before the alleged accident and finally as he is getting compensation benefit of $ 795 every month, as per the policy conditions he is not eligible for any disability benefit when he receives such compensation.
17. What is stated in Ext.P4 is that the Social Security Administration, Philadelphia has found that the complainant has become disabled under their rules. It does not indicate that the disability was total or permanent. In fact the complainant was told that they should review all disability cases and his case would be reviewed in 5 to 7 years. Based on that review his benefits would be continued if he was still disabled, otherwise not. So, there is force in the argument of opposite parties that evidence is lacking to show that the disability sustained by the complainant is total and permanent.
18. The further question is whether the medical records produced in any way prove that the complainant had sustained injuries sufficient to cause total permanent disability. Documents produced by the complainant in support of his claim are Exts.P6 to P8. Ext.P6 is a computer generated document relating to the examination of the complainant in Rothman Institute, Philadelphia on 13.08.2008.The complainant was complaining of low back pain and secondary to motor vehicle accident, neck and left upper extremity pain, headache, left shoulder pain and left knee pain secondary to fall, on November 23, 2007. So this examination does not relate solely to the full on 23.11.2007. The difficulties expressed by him were in driving more than any short distance and that the medications helped him only temporarily. Physical examination revealed moderate to severe distress, decreased range of motion, all planes, cervicolumbar spine with pain complaints at end range, severe spasm of the cervical lumbosacral paraspinal muscles, pain in the left shoulder with range of motion and positive impingement sign, left shoulder. He had left knee crepitus and pain with palpation and range of motion. No instability. Slight effusion. Some left knee pain with palpation and weightbearing.Otherwise all 4 extremities have normal findings to percussion, palpation, inspection, percussion, normal range of motion with no instability. No subluxaiton, ligamentous laxity, effusion, atrophy, contractures. Neuro: Positive straight leg raising sign bilaterally at 40 degrees, decreased reflex, left biceps, decreased reflex bilateral medical hamstrings. Otherwise all four extremities have normal reflex, sensation and strength. The clinical impression was; post two motor vehicle accidents, he is having low back pain, L4-5, L5-S1 disc protrusion, bilateral L5 radiculopathies status post fall November 23, 2007, with left C6 radiculopathy, cervical spondylosis, stenosis, aggravation, left knee contusion, headaches, motor vehicle accident, causing low back symptoms. The fall caused the neck, left upper extremity symptoms, headaches, left shoulder and left knee pain. He had a left knee contusion. He was advised follow up in one or two months. Ext.P7 relates to the examination of the complainant in the Rothman Institute Philadelphia on 11.06.2008. Similar observations are made in Ext.P7 also and the complainant was advised to continue with his current medications. It is observed that the complainant knows that he is not to drive while taking the opioid analgesics. It is further observed most likely he will be permanently disabled. He was advised follow up in one month. Ext.P8 relates to examination of the complainant in Rothman Institute, Philadelphia on 18.02.09. The observations and clinical impression recorded are more or less the same in Ext.B8 also. He was advised to continue his current medications and to consider returning to work in 3 to 4 months at a less stressful job.
19. Exts.P6 to P8 do not show that any serious disability was caused to the complainant due to alleged slip and fall on 23.11.2007. At the same time these documents show that he had other complaints due to the motor vehicle accidents sustained earlier and possibly degenerative changes due to aging had also contributed the complaints. These documents produced by the complainant will have to be appreciated along with the documents produced by the opposite parties. Ext.B11 relates to his examination soon after his fall on 23.11.2007, at the Nazareth Imaging Associates inc Nazareth Hospital, Philadelphia. He approached the hospital on 23.11.07 itself. The reason for visit is mentioned as injury due to fall. It is specifically mentioned that no fracture or dislocation was seen. What was exactly the injury sustained can not be gathered from Ext.B11. Presumably he sustained no external injury. Ext.B6 relates to the examination of the complainant in the Rothman Institute Philadelphia on 25.04.07 and that was before the alleged fall. Then his chief complaint was neck pain, low back pain and left elbow pain. History of then illness is stated thus: "this is a 56 year old gentleman who had previous C2 to C7 laminectomy with fusion and originally was seen in my office for neck pain and low back pain. Recently he also developed left elbow pain which is exquisitely painful and located in the left lateral epicondyle." Physical examination showed that he was moderately obese. Low back examination revealed that his back range of motion was slightly limited. Reflexes and sensation were essentially normal. His neck examination revealed that he had moderate tenderness to palpation in the cervical region and his neck range of motion was limited. The assessment was that the complainant had developed neck pain and low back pain due to degenerative spine changes and also tennis elbow as confirmed by ultra sound. Ext.B6 (b) is a related document. Ext.B6 (c) is a report of MRI left knee issued from the Rothman Institute, Philadelphia. Minimal subcortical degenerative changes were observed along the base of the lateral tibial spine. The impression gathered from the MRI was: no evidence of acute internal derangement. But degenerative changes were noted. Ext.B6 (d) is a report of OPEN MRI of the lumbar spine. Degenerative changes were noticed in the lumbar spine with mild progression when compared to prior study. L4-5 and L5-S1 both showed disc bulging and mild foraminal narrowing. The date of study was on 09.04.09. This was subsequent to the alleged fall based on which claim is made. So also Ext.B6 (e) is a document subsequent to the fall. Exts.B9 series and B10 show that medical examination of the complainant was conducted before issuing Ext.P3 policy, obviously, at the instance of the opposite parties. This was done before the alleged fall in 2007 and no serious ailment was noticed then. But the evidence already referred to clearly show that the complainant had sustained motor vehicle accidents may be minor accidents and his body had also under went degenerative changes when he sustained the fall on 23.11.2007. So there is force in the argument that the fall on 23.11.2007 was not the sole cause of the disabilities based on which the Social Security Administration Philadelphia granted disability benefit to the complainant. There is also force in the contention of the opposite parties that there is no sufficient evidence to show that the disability claimed by the complainant is total and permanent and was solely caused by the alleged fall. The point is answered accordingly.
Point No.2
20. The contention of the opposite parties is that the complainant had obtained Exts.A2 and A3 policies respectively on 21.07.03 and 28.03.2005 by fraudulent suppression of material facts and deliberate misrepresentation and thus he had committed breach of the principle of utmost good faith. The suppression of material facts relating to health is alleged. The learned counsel for the complainant pointed out that this argument does not apply to Ext.P1 Policy availed long before on 28.07.94. But the question whether total and permanent disability was caused solely due to fall on 23.11.2007 would arise even with regard to Ext.P1. That point is already found against the complainant. We have referred to earlier, the medical evidence produced both by the complainant and opposite parties which show that even before availing Exts.P2 and P3 policies, the complainant had spine degenerative disease and consequent discomforts though in mild form. He also met with two minor motor vehicle accidents and ultimately it appears that his complaint aggravated due to slip and fall on 23.11.2007. The contention of the opposite parties is that while submitting Exts.B1 and B2 proposals relating to Exts.P2 and P3 Policies his health condition was suppressed by the complainant. In answer to the above contention the complainant has alleged that he had in fact disclosed all his health conditions and ailments to the Development Officer and the agent of the opposite parties who approached him to canvass the policies. They asked the complainant to sign the proposal forms which they promised to fill later after going through the medical records of the complainant entrusted to them. The learned counsel for the opposite parties pointed out that the complainant is not an uneducated person. He was practising as a Behavioral Specialist (Psychology and Counselling) in USA. That apart what the complainant himself has to say in this regard are relevant. As PW1, the complainant pleaded ignorance whether the proposal forms were filled up at his instructions. According to him most of the information in the proposals is wrong .He believed the husband of the agent who was DYSP at Pathanamthitta. He believed them and signed in the blank proposal form. He admitted his signature seen on Ext.B1. He admitted that that the statement in Ext.B1 that he was practising in psychology for 7 years in USA was written as told by him. He also admitted that in Column No. 5 of Ext.B1, he has written "M.A.Psychology, M.A.Philosophy" and added that was because they had written MBBS and that was not correct. Therefore he struck off MBBS and had written the above degrees. This deposition is indicative of the fact that the complainant had at lest read filled up. Ext.B1form before signing it. The complainant claimed that he corrected only his degree in Ext.B1. But did not pay any attention to other particulars. The complainant asserted that he had specifically told the agent and Development Officer that he would fill up the form. They said that they would fill up and send a copy to him. He believed the LIC Development Officer. He believed DYSP, Mani a Vigilance Officer and he never imagined that they would suppress the facts about his medical condition to become a crorepathy.
21. Exts.B8, B9 and B10 show that the complainant was subjected to medical examination before Ext.P3 policy was issued. Ext.B9 is the computerized treadmill test done on 02.02.05. It also contains the declaration made by the complainant. Ext.B8 is a medical examination confidential report. The questions regarding past hospitalization involvement in accident etc are seen answered in the negative. ECG was also taken in connection with the examination. The question is whether the said medical examination would absolve the complainant of his obligation to disclose the material facts. In this context we may mention that the learned counsel for the opposite parties produced a bundle of decisions to highlight the legal aspects relating to suppression of material facts as well as the nature of total and permanent disability in order to claim the policy benefit. We are not discussing those decisions in detail as pure question of law is not what is involved. But whether there is suppression of material facts etc are mixed questions of law and fact and we have opted to discuss the evidence on record in detail. The other circumstance to be considered in this regard is whether merely because the proposal form is filled up by the agent that would absolve the complainant of the liability to disclose material facts relating to his health. The argument advanced is that when the agent fills up the proposal form for and on behalf of the complainant, he acts rather as the agent of the complainant himself and not the opposite parties. Also in this case the evidence of the complainant indicates that he had in fact read through the proposal before he signed the same. So he was surely aware how the condition relating to his health was answered in the proposal form. Hence he can not be absolved from the allegation that material facts relating to his health were suppressed at his behest. Under the above circumstances this point is also answered against the complainant.
Point No.3
22. It follows from the conclusions arrived at earlier that the opposite parties repudiated the claim of complainant not without justification. It follows that on the facts and evidence disclosed deficiency in service on the part of the opposite parties can not be found. Hence the complaint is liable to be dismissed.
In the result, the complaint is dismissed but without costs.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
APPENDIX
Witness for the complainant
PW1 : Dr.Thomas.V.Thomas
Witness for the opposite party
DW1 : Tom Varghese
Exhibits for the complainant
Ext.P1 : Copy of LIC of India policy no.761387575
dtd: 28.07.94
Ext.P2 : Copy of LIC of India policy no.392675764
dtd :21.07.2003
Ext.P3 : Copy of LIC of India policy no.393046237
dtd: 28.03.2005
Ext.P4 : Copy of Social security administration retirement,
Survivors and disability insurance dtd: 19.04.2009
Ext.P5 : Letter from Divisional office, Jeevan prakash
Nagapadom, Kottayam to Dr.Thomas.V.Thomas
Ext.P6 : Copy of Rothman Institute dated: 13.08.2008
Ext.P7 : Copy of Rothman Institute dated: 11.06.2008
Ext.P8 : Copy of Rothman Institute dated: 18.02.2009
Exhibits for the opposite party
Ext.B1 : Copy of LIC Policy
Ext.B2 : Copy of LIC policy
Ext.B3 : Copy of letter from LIC to Dr.Thomas.U.Thomas
dated: 23.05.2005
Ext.B4 : Copy of letter from LIC dated: 27.01.2006
Ext.B5 : Copy of social security administration retirement,
survivors and disability insurance dated : 19.04.2009
Ext.B6 : Copy of Rothman Institute dated: 25.04.2007
Ext.B6 (a) : copy of Rothman Institute dated 25.04.2007
Ext.B6 (b) : Copy of Rothman Institute dated: 25.04.2007
Ext.B6 ( c) : Copy from Broad Street Imaging dated : 21.02.2008
Ext.B7 : Copy of claim for disability benefit
Ext.B8 : Medical examiner's confidential report 14.07.2003
(Original)
Ext.B9 : Computerized treadmill test (Original)
Ext.B9 (a) : electrocardiogram Report (Original)
Ext.B9 (b) : routine urine analysis Report (Original)
Ext.B9 © : Special bio-chemical tests 12 (SBT-12)
Ext.B9 (d) : Haemogram Report (Original)
Ext.B9(e) : Report on X-ray of chest (P.A.View) (Original)
Ext.B9 (f) : Copy of LIC dated 04.02.05
Ext.B9 (g) : Medical Examiner's Confidential Report 02.02.2005
Ext.B10 : ECG Report from St.Gregorious Cardio Vascular
Centre
Ext.B11 : X-ray report
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
Be/
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SMT.A.RADHA] MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER