Jassa Singh v. Max Bupa Health Insurance Company Limited

2) To be referred to the Reporters or not? Yes/No

3) Whether judgment should be reported in the Digest? Yes/No Argued by:- For the complainant : None For the opposite parties : Sh. Nitin Thatai, Advocate Defence struck off, vide order Dated 22.11.2019 Consumer Complaint No.679 of 2019 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: The complainant has filed this complaint under Section

17 of the Consumer Protection Act, 1986 (in short the Act), against the opposite parties (in short OPs) seeking following reliefs;-

a) OPs be directed to pay Rs.12,50,000/- as claim amount with interest @12.5% per annum or at an appropriate rate, as this Commission may deem fit;

b) to grant the damages to the extent of Rs.5,00,000/- on account of mental, agony and harassment;

c) to allow the cost of litigation to the extent of Rs.55,000/-; and

d) to pass any other orders or directions deemed appropriate in the facts and circumstances of the case. Facts of the complaint:

2. The brief facts of the case are that the complainant is an illiterate person and is having two children i.e. one son and one daughter. He purchased a policy No.30143115201200 individual/family plan for a period of one year i.e. from 26.10.2012 to 25.10.2013 for the total sum assured of Rs.25,00,000/- and Rs.12,50,000/- for either of spouse by paying premium of Rs.6589/-, Ex.C-1. The complainant was paying the premium of the said policy regularly. As per terms and conditions of the policy, if any of the spouse dies during the currency of the policy, then the nominee of the said policy is entitled to an amount of Rs.12,50,000/-. The complainant is a nominee of his wife under the said policy. After the medical checkup of complainant and his wife and after satisfying from the report, the said policy was issued Consumer Complaint No.679 of 2019 to them by the OPs. The complainant was living a happy married life with her wife, but unfortunately, his wife died on 27.11.2012 after falling from the roof while she was coating the roof of the barn. Thereafter, the police got conducted the inquiry regarding the cause of death. The police report is Ex.C-2 and death certificate is C-3. Thereafter, the complainant after getting free and coming out of the said shock approached OP No.2 and it got signatures of the complainant on various papers and also assured him that amount would be released to him in the near future, as some formalities were required. The complainant submitted the claim form, Ex.C-4, with OPs on 01.03.2016 and requested from release of the due amount, but they put off the matter on one pretest or the other. Till date, neither OPs have given any sufficient reply nor they have released the said claim amount. Finally, they have repudiated the claim of the complainant without giving any valid reason, vide letter dated 01.09.2017, Ex.C-5. The complainant again requested OP No.2 to settle the claim, but it flatly refused to do the needful. The complainant alleged deficiency in service and unfair trade practice on the part of OPs due to which, he suffered harassment, mental agony, torture and financial loss. Hence, the complaint. Defence of the OPs

3. Upon notice, OPs appeared, but they had not filed any reply to the complaint within the statutory period, hence their defence was struck off by this Commission, vide order dated Consumer Complaint No.679 of 2019 22.11.2019. Thereafter, the OPs filed an appeal No.2373/2019 before the Honble National Commission challenging this impugned order before the National Commission, but they have not placed on record any order of the Honble National Commission, wherein the said impugned order dated 22.11.2019 has been set aside. It was alleged in the MA for condonation of delay that in compliance of order of the Honble National Commission the OPs have filed application for condonation of delay in filing the reply alongwith reply and documents. The said application was also dismissed by this Commission, because OPs had failed to explain the reasons of delay in filing the written reply and that application has not been signed by the OPs and is also without any supporting affidavit, vide order dated 01.07.2021. Evidence of the Parties

4. To prove his claim, the complainant, along with the complaint, filed his affidavit and documents i.e. letter dated 27.12.2012 and policy documents Ex.C-1 (colly), report regarding death of Sarabjit Kaur issued by Gurmeet Singh, ASI, Police Post Thatha Kishan Wala, PS Mallanwala dated 28.12.2012 Ex.C-2, death certificate of Sarabjit Kaur Ex.C-3, claim form Ex.C-4 and denial of claim dated 01.09.2017 Ex.C-5. Contentions of the Parties

5. The defence of the OPs was struck off by this Commission vide order dated 22.11.2019, but despite that in the interest of justice we have given opportunity to the learned counsel Consumer Complaint No.679 of 2019 for the OPs to argue the case in defence and we have heard learned counsel for the OPs only, as none appeared on behalf of the complainant and have gone through the record of the case carefully.

6. Learned counsel for the OPs vehemently contended that the contents of the proposal/application form were read and explained to the complainant in the language best known to him by the concerned financial consultant. The proposal was accepted on the standard rates based on the information provided by the complainant. He further argued that insurance is a contract between the insurer and the insured and is executed by both the parties after understanding all the terms and conditions of the Insurance Contract and the complainant had signed the application form after having understood the full terms and conditions of the policy. Learned counsel further contended that complainants wife died on 27.11.2012 after falling from the roof while she was plastering the floor of the roof and the said incident was inquired by the police and reported DDR on 28.12.2012 in this regard, but the complainant never informed the OPs with an ulterior motive to take undue advantage of the process of law and submitted claim form on 01.03.2016 after a delay of more than three years. Being an early death, OPs got investigated the matter and also asked the complainant to provide documents for processing the claim, vide letters dated 11.10.2016 and 26.10.2016. He further argued that mere perusal of the DDR Consumer Complaint No.679 of 2019 regarding death of deceased, reveals that the complainant was working as a daily wage labourer with Rs.200/- per day as daily wage and used to earn around Rs.4000/- per month, but he mentioned in proposal form his income as Rs.3,50,000/- and his qualification as Matric. No ITR provided by the complainant and he misrepresented about his income. As such, he concealed this fact from the OPs while taking the said insurance policy and filling up the proposal form. Learned counsel further raised objection with regard to pecuniary jurisdiction and prayed for dismissal of the complaint. Consideration of Contentions

7. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the OPs and pleadings of the complainant.

8. The first contention of learned counsel for the OPs is that the contents of the proposal/application form were explained to the complainant in the language best known to him by the concerned financial consultant, but he concealed the facts about his income. Now, the question is that whether the agent of OPs explained the terms and conditions of the said policy to the complainant or not? We have perused the proposal form Ex.C-1 (colly) on the record and it is pertinent to mention that vernacular declaration is vacant in the proposal form and there is no signatures of the complainant under this vernacular declaration, it means that terms and conditions of the policy were not explained Consumer Complaint No.679 of 2019 by the said insurance advisor to the complainant in native vernacular language. As such, the contention of learned counsel with regard to explanation of the terms and conditions to the complainant in the language known to him has no force and we reject the same.

9. It is very important point for adjudication whether the proposal form filled by the complainant or by the agent. The complainant pleaded in para No.2 of the complaint that he is illiterate person and at the time of arguments learned counsel for the OPs has failed to rebut this pleading of the complainant. In the proposal form, Ex.C-1 (colly), the education and qualification of the complainant has been shown as matric, but from perusal of his signatures, it clearly seems that he is illiterate person. In view of this, it is clear that the said proposal form was filled by the agent and not by the complainant himself, because he is illiterate person. As such, we are of the opinion that the complainant was not fully aware of the terms and conditions of the policy. Moreover, the policy alongwith terms and conditions, Ex.C-1, which had been sent by OPs to the complainant is also in English language only, not in the native language known to the complainant. The proposal forms are standard forms prepared by the legal experts of the Insurance Companies, whereas the complainant is virtual illiterate. So, he is required to be explained in his native language. Insurance Companies take premiums and later on at the time of settlement of the claim deny the claims on the grounds/terms, Consumer Complaint No.679 of 2019 which are never explained to the insured. The matter is no more res integra, the Honble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 held that It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

10. Further the occupation of the complainant has been shown as retail business and his annual income has been written as Rs.3,50,000/- in the proposal form. It is pertinent to mention that generally a proposer fills the proposal form and also submit the documents with regard to his/her identity i.e. Aadhaar card, driving licence, PAN card, etc. and he also submits the documents with regard to his/her income and agent/advisor of the Insurance Company verifies the same and said agent/advisor can also ask about the documents from the proposer at the time of verifying the same, if he has any doubt. But in this case, Renu Bala was the advisor and she herself verified the identity of the complainant. But it is important to note that in the proposal form, the date of birth of Consumer Complaint No.679 of 2019 the complainant Jassa Singh is mentioned as 01.01.1976, whereas there is a Aadhaar Card of the complainant, which placed on the record by OPs with the investigation report, wherein the date of birth has been mentioned as 13.05.1971, but neither she made any comment on it with regard to date of birth of the complainant nor agent made any comment with regard to ITR and with regard to his business, if the same had not been supplied by the proposer at time of submitting the proposal form. This discrepancy would have been noticed. It is also pertinent to mention that in the proposal form there is a tick on the line wherein it has been mentioned that the document may be sent to me by email, but no email address has been mentioned before it. In view of this, it is clear that nothing had been verified by the said advisor of the OPs and the said proposal form was filled by the advisor at her own end. Even she did not explain the same to the complainant in native vernacular language, as already proved on record. But, as per argument of the learned counsel for the OPs, the complainant had provided the wrong information, but it is pertinent to mention that once the proposal form verified by the insurance advisor of the OPs on the same date now at the time payment of the claim they cannot raise these types of issues of concealment to deny the claim. Moreover, when it has been proved on record that the proposal form was filled up by the agent/advisor of the OPs, because the complainant is an illiterate person, we are unable to rely upon the contention of learned Consumer Complaint No.679 of 2019 counsel for the OPs with regard to concealment of any material fact on the part of the complainant. The Honble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC), held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This take it or leave it, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims.

11. The complainant purchased the Health Assurance Policy, Ex.C-1, from the OPs, wherein the sum assured under personal accident benefit is Rs.25,00,000/- for the complainant himself and half of the same i.e. Rs.12,50,000/- for her spouse i.e. Sarabjit Kaur. The said policy was for the period from 26.10.2012 to 25.10.2013 and the complainant paid the annual premium of Rs.6589/- to the OPs. The plea of the complainant is that his spouse Sarabjit Kaur unfortunately died on 27.11.2012 after falling from the roof while she was plastering the floor of the roof. This fact is also proved on record from the police investigation report of Gurmit Singh, ASI, Ex.C-2, that her wife Sarabjit Kaur died due to fell from the roof of the house, when she was plastering the floor of the same. From perusal of it, it is clear that wife of the complainant Consumer Complaint No.679 of 2019 died due to above said accident of falling from roof of the house and OPs also admitted this fact. As such, it is proved on record that the wife of the complainant died due to above said accident on 27.11.2012 and, as per policy, the nominee (Jassa Singh) is entitled to 100% of accidental death benefit i.e. Rs.12,50,000/-.

12. Learned counsel for the OPs strongly argued that the complainant had lodged the claim after long delay of more than three years i.e. on 01.03.2016 after the death of her wife, who expired on 27.11.2012, with an ulterior motive to take undue advantage of the process of the law. Now, we have to decide this point whether the complainant has lodged the claim with an ulterior motive to take undue advantage of the process of law? It is an admitted fact of the case that the complainant lodged the claim after considerable delay on 01.03.2016. The plea of the complainant is that after getting free and coming out of the said shock, he informed the OPs, but he had not mentioned any date. But, he admitted that he submitted the claim form on 01.03.2016 with OPs. The complainant belongs to poor strata of the society and is a rustic villager. Such people are not aware of the nity gritty of law. So, delay occurs. It is important to note that the Insurance Companies generally on receiving the claim form, investigate the matter to settle the claim of the customer. In this case, the wife of the complainant died due to fell from the roof of the house while she was coating the roof of the barn. It is clear case of accident as is proved on record from the report of Assistant Sub Inspector Consumer Complaint No.679 of 2019 Gurmeet Singh, Police Post Thatha Kishan Wala, PS Mallanwala, dated 28.12.2012, who investigated the matter. From it, it is clear that cause of death was verified by the police of the area after thoroughly investigating the matter within one month from death of Sarabjit Kaur assured, the wife of the complainant. It is also pertinent to mention that in this case, the OPs also got investigated the matter regarding the cause of the death of the insured and found the cause of death genuine, as reported by the police, vide Ex.C-2. In view of this, we find no ulterior motive on the part of the complainant in submitting the delayed claim form after a long time. Moreover, the IRDA has also issued circular to the Insurance Companies that the genuine claim be not rejected on hyper technical grounds i.e. delay, which is reproduced as under:- INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated:20.09.2011 CIRCULAR To All life insurers and non-life insurers. Re: Delay in claim intimation/documents submission with respect to

i. All life insurance contracts and

ii. All Non-life individual and group insurance contracts. The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents. The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when Consumer Complaint No.679 of 2019 there is delay in intimation or in submission of documents due to unavoidable circumstances. The insurers decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation. Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time. The insurers are advised to incorporate additional wordings in the policy documents, suitable enunciating insurers stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured. Sd/- J. Harinarayan CHAIRMAN. The cause of death of the spouse of the complainant is sudden accidental fall from roof. Hence, in this case, we find no ulterior motive of the complainant in submitting the delayed claim, when the matter was immediately investigated by the police, an independent State Investigating Agency. In view of this, the complainant has not taken any advantage of the process of law. The complainant is an illiterate rustic villager and the OPs failed to explain the terms and conditions to him in native vernacular language, as discussed above and due to non-understanding the terms and conditions, due shock of sudden death of his wife, who left two children behind her, the complainant could not file the Consumer Complaint No.679 of 2019 claim within time and it is not an ulterior motive of the complainant in this case. Moreover, the OPs got investigated the matter thoroughly and denied the claim vide letter dated 01.09.2017 Ex.C-5, on hyper technical grounds wherein the OPs have taken a plea that the personal accident/accident case does not fall under members benefit (spouse). But from perusal of policy documents, Ex.C-1 (colly), it is clear that the spouse of the complainant was fully insured under the personal accident benefit for the sum assured of Rs.12,50,000/-, as such, the complainant, who is nominee under the policy of her spouse is entitled to receive the claim, as discussed above. Moreover, the demanding of documents with regard to income proof and PAN card by the OPs from the complainant when he lodged the clam is not justified. These would have been demanded before issuance of the insurance policy. In case Accidental Death Sum Insured is above Rs.25 Lakhs, copy of self signed latest income proof (Latest 3 salary slips/Form 16/IT return) is to be provided along with the completed proposal form and the proof of income is required only in case of accidental death sum insured exceeding Rs.25,00,000/-. Moreover, we have already discussed above, that at the time of taking the said insurance policy the advisor had not demanded the related documents from the complainant. Insurance Companies are eager to get business through their agents on payment of commission even without completing the formalities. It is also pertinent to mention that argument of counsel for OPs with regard Consumer Complaint No.679 of 2019 to income of OPs on the police report, Ex.C-2, which was added by the police later on only on the asking of the OPs, has no value in the eyes of law, because it cannot be taken as income proof of the complainant. Otherwise also even a labourer in those days used to charge Rs.400/- per day as labour besides other income of doing domestic works. The above referred authority of Honble Supreme Court in Dharmendra Goels case (supra) is fully applicable in this case. As such, the objections of the OPs in the denial letter Ex.C-5 is not tenable in the eyes of law and we reject the same. The complainant is entitled to the claim amount of Rs.12,50,000/- with interest from the date of denial of claim i.e. 01.09.2017 till the date of payment and he is also entitled to the compensation and litigation expenses.

13. In view of our above discussion, we partly allow the complaint with the followings directions to the OPs:-

i) to pay the claim amount of Rs.12,50,000/- with interest @9% per annum from 01.09.2017 till its realization; ii) further to pay composite amount of compensation of Rs.40,000/- for mental agony and harassment and for litigation expenses. The OPs are directed to comply with the above said order within

45 days from the date of receipt of certified copy of this order. Consumer Complaint No.679 of 2019

14. The complaint could not be decided within the stipulated period due to heavy pendency of Court cases and non- sitting of this Commission due to pandemic of Covid-19. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) July 06, 2021. MEMBER (MM)