Mr. V.B Gupta, Presiding Member:— By this common order, above noted revision petitions are being disposed of as common question of law and facts are involved.
2. Facts in brief are that respondents/complainants filed complaints under section 12 of the Consumer Protection Act, 1986 (for short ‘Act’) pleading that respondent no. 1 is the wife and respondents no. 2 to 4, are the children of Sh. Sanjay Sharma, who was running a sweet shop at Bansawala Bazaar, Jalandhar. He had taken a Marriage Endowment/Educational Annuity Plan with profit along with accidental benefit, bearing policy no. 131706510 for a sum of Rs. 2.00 lacs and also Jeevan Chhaya policy bearing No. 131915231 for a sum of Rs. 2.00 lacs. On 24.03.2005, Sh. Sanjay Sharma developed some pain in the stomach and was admitted in DMC & Hospital, Ludhiana and died on 24.03.2005 Respondent no. 1, vide letter dated 05.07.2003 informed the petitioner regarding death of her husband and requested it to settle the death claim under the above policies. However, petitioner, vide letters dated 27.10.2005 and 23.11.2005, repudiated the death claim of late Sanjay Sharma, illegally on the ground that deceased was suffering from diabetes and was a chronic alcoholic for the last 10-20 years and he did not disclose these facts at the time of taking the policies.
3. Respondent no. 1 made a representation against the repudiation letter dated 27.10.2005 and requested the Petitioner to withdraw the same and to afford an opportunity of hearing. Petitioner, vide letter dated 17.04.2006, declined the said representation. It is stated that before issuing the said policies, the agent/surveyor acting on behalf of the petitioner had satisfied himself qua the health of Sh. Sanjay Sharma-deceased. Thus, there was no concealment on the part of the insured. Finally, legal notice dated 31.05.2006 was also sent, but of no use. It was prayed that petitioner be directed to pay the claim amount along with interest and compensation to the tune of Rs. 3,70,000/- along with interest @ 18% p.a
4. In its written statement, petitioner took preliminary objection that the life assured at the time of taking the policies has suppressed the material facts and gave wrong answers in the proposal form. The duration of the policy was one year and eight months and it was reported that the life assured was in the habit of taking alcohol and was addicted to it. It is alleged that as per Form no. 3816 issued by the DMC & Hospital, Ludhiana, it reported diagnosis of acute pancreatitis K/L/O of DMX 2 to 3 years and history of alcohol intake 10 to 20 years. As per report, insured was admitted in the hospital with complaint of pain in the abdomen and vomiting. Further, as per history given by the said hospital in Form no. 3784, it transpired that alcoholic intake 10 to 20 years 500 M.L K/L/O of DMX 2 to 3 years of regular medicines and the history was reported by the patient himself. Thus, petitioner rightly repudiated the claim of policy no. 131706510 and other policy no. 131915231 and decision was conveyed to the respondent no. 1, vide registered letter dated 27.10.2005 Appeal filed by the respondents before the Zonal Officer (C.R.C), New Delhi, was also dismissed and the decision was conveyed, vide letter dated 17.04.2006 There is no deficiency in service on the part of the petitioner.
5. District Consumer Disputes Redressal Forum, Jalandhar (for short ‘District Forum’) vide its order dated 29.2.2008, allowed the complaints and quashed the repudiation letter and directed the petitioner to honour the policy and release all the benefits including interest and bonus to the nominees at the stipulated rate as per terms and conditions of the policy. Further, respondents were awarded interest @ 9% per annum from the date of repudiation, till payment and also awarded cost of Rs. 3,000/-.
6. Aggrieved by the orders of District Forum, petitioner filed appeals before the State Commission which vide its impugned order, dismissed the appeals of the petitioner.
7. Hence, this revision.
8. It has been contended by learned counsel for petitioner that contract of insurance is a contract of utmost good faith. In the present case, the insured has suppressed the material facts about his health and habits in the proposal form at the time of taking of the policy. The suppression of material information itself violates the terms of the contract. Under these circumstances, impugned order is liable to be set aside.
9. District Forum in its order has held;
“In this case, case of the complainant is covered u/s. 45 Sub Clause 2 of Life Insurance Act only and the OPs were bound to prove that insured was suffering from pre-existing disease before taking policy and he deliberately made the false statement with intention to defraud the Insurance Company.
Therefore, in this case, the Insurance Company was bound to prove that insured had received treatment in diabetes mellitus or he was being aware from the suffering of the disease before purchase of the policy. In this case documents 3816 and 3784 produced by the OPs, Ex. O-6 and Ex. O-7 produced by the OPs relates to the treatment much after the policy and there is no medical record or affidavit of the doctor that insured had taken treatment before start of the policy. Therefore, in this case, the OPs have failed to produce the direct evidence of treatment before start of the policy.”
10. The State Commission while upholding the decision of District Forum, observed;
“14. Admittedly policy no. 131706510 was for Marriage/Educational Annuity etc. and it was accepted on 15.07.2003 The deceased life assured Sh. Sanjay Sharma developed pain in the stomach and was admitted in DMC & Hospital, Ludhiana on 24.03.2005 and cause of death given was acute severe pancreatitis and shock. He was diagnosed as acute pancreatitis K/L/O of DMX 2 to 3 years, history of alcohol intake 10 to 20 years. The onus was on the appellant to prove that the decease life assured was suffering from such diseases prior to taking of the policy in question. The appellant tendered the affidavit Ex. OW1 of Sh. S.L Dhupar, Manager, who has stated on oath as per the reply filed. Ex. OW2 is the affidavit of Sh. R.K Sharma, Manager, who has deposed that as per medical record, life assured was suffering from acute pancreatitis K/L/O of DMX 2 to 3 years and as per the record, the life assured had the history of alcohol intake 10 to 20 years. Ex. OW3 is the affidavit of Dr. Raj Kumar Vagal. He has also deposed that as per the record, Sh. Sanjay Sharma was admitted in the hospital on 22.03.2005 and at the time of admission, the hospital maintained the record and Sh. Sanjay Sharma was discharged from the hospital on 23.03.2005 Form no. 3816 was duly filled in as per the record maintained by the hospital and Form no. 3816 is correct as per the record maintained by the hospital. Ex. O5 is the certificate of Identity and Burial or Cremation and in columns no. 6, 7 and 11, what was diagnosed and case summary, is given by one Rajiv of DMC & Hospital, Ludhiana which is signed by the Professor, Department of Surgery, DMC & Hospital, Ludhiana and is countersigned by the Medical Superintendent of DMC & Hospital. Ex. O7 is the certificate of hospital treatment wherein in columns no. 6 and 7, diagnosis are given and in column no. 11 (history of illness as per the record), it is mentioned that patient was not admitted before this time. Ex. O8 is the death certificate. Ex. O9 is Agent's Confidential Report and Ex. 10 is the policy in question and Ex. 11 is the letter dated 27.10.2005, repudiating the claim of the respondent no. 1 Smt. Priya Sharma. Ex. 12 is the medical attendance certificate and it was given by Dr. Sagar Sabharwal. The appellant has not examined any of the doctors or the persons, who wrote the history or the person, who gave the history. The appellant has also examined Sh. Pawan Kumar, Head Clerk, Medical Record Department, DMC & Hospital, Ludhiana. He has deposed that he has brought the record pertaining to patient Sh. Sanjay Sharma and he was admitted in their hospital on 24th March, 2005 in emergency department and was treated by Dr. Rajeev Arora and he died on the same day. LIC Form No. 3816 was filled up by Dr. Rajeev Arora and signed by Dr. Kuldeep Singh which is countersigned by the Medical Superintendent of the hospital. Similarly, Form No. 3784 was filled up by Dr. Sabharwal and the information recorded is correct. In his cross examination, he deposed that the record is not in his handwriting and the same was not prepared by him. He does not know regarding the deceased and the treatment which was given to Sh. Sanjay Sharma in their hospital. He cannot tell personally as to for how many years, deceased Sh. Sanjay Sharma was suffering from any alleged disease. Neither the deceased nor his wife Smt. Priya Sharma narrated the history regarding the health of deceased Sanjay Sharma in his presence. He further admitted that in Form No. 3816 in column no. 5(c), it is mentioned by the hospital regarding the health of Sh. Sanjay Sharma narrated by his wife Smt. Priya Sharma and in contradiction to this statement in Form no. 3784, it has been mentioned in column no. 7 (c) that the history of deceased was narrated by the patient himself. He admitted that Dr. Sagar Sabharwal and Dr. Rajeev Arora both are working as Senior Residents in the hospital. Dr. Kuldeep Singh is still in the hospital. He has not worked under any of the doctors under reference, as his duty is confined only to maintain the record of the patients in the record room.
15. Thus, from the entire evidence led by the appellant, it is clear that the relevant piece of evidence has not come on record, to prove that the deceased life assured was suffering from pre-existing disease at the time of taking the policy. Neither Dr. Sagar Sabharwal nor Dr. Rajeev Arora, who are still working in DMC & Hospital, Ludhiana as Senior Residents, was examined. As per witness Pawan Kumar, Dr. Kuldeep Singh is still working in the hospital, but he has not been examined. The witness examined by the appellant is of no help to the appellant, as he knows nothing about the assured or any disease/pre-existing disease suffered by him because he is only maintaining the record.”
11. State Commission further observed;
“In this case, there is no evidence on record to prove that the deceased life assured was suffering from any pre-existing disease at the time of purchasing the policy. As discussed above, the onus lay heavily on the appellant to prove that the deceased life assured suppressed the material facts and even the doctor of the appellant, who examined the life assured at the time of taking the policy, has also not been examined and how it can be expected that a competent doctor examining the person before the purchase of policy, will not be able to detect that the person filling the proposal form is not suffering from such disease which exists much prior to the date of taking of the policy. There is no evidence to prove that the deceased was ever admitted or took any treatment from any hospital or the doctor regarding the alleged pre-existing disease. The District Forum has arrived at a correct conclusion and there is no ground to interfere in the same.”
12. As per settled law, the onus to prove that insured was suffering from pre-existing disease is on the petitioner. Petitioner has admittedly not examined any doctor to prove this fact that insured was suffering from any pre-existing disease at the time of taking the policy. Had the Doctor been examined, then respondents would have got the opportunity to examine the petitioner's witnesses and to demolish the petitioner's defence.
13. In Tarlok Chand Khanna v. United India Insurance Company Ltd., I (2012) CPJ 84 (NC) this Commission has observed;
“The onus to prove that the Petitioner was suffering from a pre-existing disease as per settled law is on the respondent. We note that the respondent has not produced any credible documentary evidence/expert medical opinion in support of its case. The medical opinion dated 16.3.2003 of Dr. Neel Kanth Sharma cited in support is of little evidentiary value because he is not a medical expert being an M.B.B.S doctor and on the panel of physicians of the Respondent/Insurance Company. His letter is also not backed by any affidavit nor was he ever cross-examined. Further, it is not disputed that the insured had been taking mediclaim policy right from 1996 and nowhere has it been recorded that she had any medical condition including the problem of the knees, by the Respondent's doctor who examined her. Thus, there is no record produced by the Respondent to indicate that any such disease existed and that it was, therefore, pre-existing disease was on the Respondent which as stated above, it has failed to do.”
14. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
15. Recently, Supreme Court in Gurgaon Gramin Bank v. Smt. Khazani, Civil Appeal No. 6261 of 2012 decided on 4.9.2012, has observed;
“12. We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National Disputes Redressal Commission and we fail to see what is the important question of law to be decided by the Supreme Court. In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this Court.”
16. In view of the above facts it has not been established by the petitioner that insured had any pre-existing disease which would justify repudiation of the claim.
17. For the reasons stated above and particularly in the absence of any credible documentary or other evidence produced by the petitioner on whom was the onus to prove the reasons for repudiation, both these revision petitions stand dismissed with cost of Rs. 5,000/- (Rupees Five thousand only) each.
18. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today.
19. In case, cost is not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a, till realization.
20. Pending applications, if any, stand disposed of.
21. List on 14.12.2012 for compliance.