ORAL ORDER
PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT
This complaint, under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act" for short) has been filed by the complainant feeling aggrieved by repudiation of insurance claim and alleging deficiency in service on the part of the opposite parties. The complainant has sought direction to the opposite party for payment of sum assured under the insurance policy Rs.25,00,000/- with interest @ 12% p.a. from the date of filing complaint, compensation for deficiency in service committed by the opposite parties Rs.15,00,000/-, compensation
1
for mental agony Rs.5,00,000/- and cost of litigation along with any other relief which this Commission deems fit to award.
2. Brief facts necessary for disposal of this complaint, as per the complaint, are that the husband of the complainant Late Kamal Kishor Panda obtained an early death claim insurance policy bearing No.358922519 and premium of which were being regularly paid. The insured Kamal Kishor Panda died during subsistence of the policy on 05.03.2017 and the complainant is entitled to get the benefits of the insurance policy. Complainant has further averred that original bond paper of the said insurance policy was misplaced somewhere therefore she requested the opposite parties to provide second copy of the same but was not provided by them with intention of depriving the complainant from the benefit of the policy. Legal notice dated 18.07.2018 was sent to the opposite parties, which was replied by the opposite party No.1 denying their liability of payment of insurance claim. Again a legal notice was sent on 26.11.2018 which was not replied. For getting the second copy of policy bond the complainant had also moved application under Right to Information Act, but the document was not provided even after filing First Appeal in that matter. Hence, alleging deficiency in service in non- payment of sum insured as death benefit of the insured, this complaint is filed seeking reliefs as aforesaid in paragraph No.1.
3. The opposite parties in their joint written version have admitted the fact of issuance of insurance policy and averred that insurance policy under Amulya Jeevan-2 scheme for sum assured Rs.25,00,000/- and annual premium of Rs.17,425/- was issued on 15.08.2015 in favour of husband of the complainant. The opposite parties have denied the story of misplacing of policy bond and stated that in fact the original policy was
2
deposited in the office of the opposite parties with regard to getting the insurance claim. The opposite parties have further averred that as the insured died within one year and eight months of commencement of the policy hence being a case of early death claim it was investigated as per rule and on investigation it revealed that the insured Late Kamal Kishor Panda while making proposal for getting insurance cover had given incorrect information regarding his health in column No.11 - Personal History. Incorrect information was given by him with regard to Column No.11 (b) (d) and (e) of the Proposal Form. In fact before giving proposal for the insurance, the insured was suffering SOL in right Lung (Space Occupying Lesion of Lung) i.e. lung cancer, for which he was treated in Apollo Hospital Bilaspur (C.G.). He was also suffering Hydatid Cyst and CCAM of Right Lung. The insured was in knowledge of his above diseases before giving insurance proposal as he got treatment for the said diseases from Apollo Hospital Bilaspur (C.G.) which is evident from documents regarding his treatment. As the insurance policy was obtained by the insured by deliberately concealing the material facts regarding his health, hence as per terms & conditions of the insurance contract the claim was repudiated and in doing so no deficiency in service was committed by the opposite parties. It is prayed that this complaint be dismissed with cost.
4. In support of the complaint the complainant has filed copies of legal notice dated 18.07.2018 and its reply dated 27.07.2018. Legal notice dated 28.11.2018. Complainant has filed her affidavit in support of the complaint and additional affidavit dated 12.01.2020 and affidavit of Dr. Prashant Kumar dated 12.01.2020, who was called to visited the home of the complainant for treating her husband but after examining husband of
3
the complainant, Dr. D. Prashant Kumar declared her husband Kamal Kishor Panda as dead. He issued a note mentioning probable cause of death as Cardio Respiratory Arrest. Whereas the opposite parties have filed affidavit of Mr. P. Anand Rao, Manager (Legal), Divisional Office, Life Insurance Corporation of India, Bilaspur and copy of insurance proposal, insurance policy, claim form, claim investigation report, repudiation letter, insured"s Treatment Documents of AIIMS, New Delhis and that of Apollo Hospital, Bilsapur and reply of legal notice.
5. None appeared for the complainant on the date of final arguments even after second call, however we have minutely gone though the complaint, affidavits and documents filed by the complainant. We have heard arguments of learned counsels for the opposite parties and perused the affidavit and documents filed by them.
6. In support of the complaint the complainant has filed her affidavit and later on filed another affidavit dated 12.01.2020 in which she has clarified the facts as per objections raised by the opposite parties in their written version. In the said affidavit she has stated that in the copy of proposal form filed by the opposite parties the entries made are not handwritten by her husband. It appears that signature of her husband was obtained on a blank form and later on Agent of the opposite parties has filled the proposal form, hence nothing was concealing by her husband. She has also stated that the opposite parties before issuing the insurance policy got the insured physically examined by Dr. Amit Soni and on giving examination report as fit, insurance of her husband was done by the opposite parties. She has further stated that her husband died of cardio respiratory arrest and this fact is also affirmed by the report of Dr.
4
D. Prashant Kumar and thus the cause of death of her husband is not cancer as alleged by the opposite parties.
7. Learned counsels for the opposite parties have argued that it is not in dispute that the insured died within one year and eight months from the date of commencement of the policy and being a case of early death claim the opposite parties conducted investigation under the provisions of Section 45 of the Insurance Act 1938 as amended by Insurance Laws (Amendment) Act, 2015 which provides for calling in question a policy of life insurance at any time within three years from the date of issuance of the policy or the date of commencement of risk on the ground of fraud like the active concealment of a fact by the insured having knowledge or belief of the fact or concealment of facts, omission etc. On such investigation it revealed that the insured was a patient of lung cancer and took treatment in AIIMS New Delhi and Apollo Hospital Bilaspur. Treatment documents received from the said Hospitals have also been brought on record As Exhibit NA/OP-6 & NA/OP-7 respectively. These facts were concealed by the insured while making proposal for insurance policy and in the relevant column of the proposal form, i.e. column No.11 Personal History he replied all the questions regarding his health, treatment taken, hospitalization for more than a week, question that he ever suffered or suffering from cancer, diabetes, tuberculosis, High Blood pressure Low Blood pressure etc. has replied in „No". Especially the information given in reply of question at (b), (d) and (e) of the Column No.11 are relevant which were given incorrect as evident from the treatment record of the AIIMS New Delhi as well as that of Apollo Hospital Bilaspur. Hence the claim was repudiated in accordance with the terms and conditions of the policy and they have not committed any deficiency in service.
5
8. We have considered the above arguments as well as the statement of the complainant in her affidavit. So far as the contention of the complainant regarding the information in the proposal form was not filled by her husband and in fact it was filled by Agent of the Insurance Corporation is concerned, we do not find any substance in this objection looking to the fact that in the proposal form, declarations and wherever it was necessary the insured had signed it and the signature is not questioned by the complainant. Otherwise also except statement of the complainant there is nothing on record which can cogently prove that the handwriting is not of the insured himself, nor report of any handwriting expert is brought on record.
9. The second contention of the complainant is that her husband died of cardio respiratory arrest as opined by the Dr. Prashant Kumar and not due to cancer. In this regard we have gone through the report of Dr. D. Prashant Kumar, filed as Exhibit A-11 and also the affidavit of Dr. D. Prashant Kumar. Dr. D. Prashant Kumar has given his opinion regarding cause of death as probable cause and mentioned in his report that "He declared the patient dead at 5:00 am, probable cause: Cardio Respiratory Arrest". This report shows that it was probable cause of death and there is nothing on record to show the definite cause of death. But at the same time it is also true the insured was diagnosed as suffering from SoL in Right Lung (Space Occupying Lesion of Lung) and Hydatid Cust and CCAM of Right Lung at Apollo Hospital Bilaspur and was treated there. At the AIIMS New Delhi in February 2016 the insured was present to Medical Oncology Department with the history that he was diagnosed as soft tissue sarcoma at private hospital Bilaspur in 2012. He received multiple line of therapy including 3 lines of chemotherapy radiation
6
therapy as well as surgical intervention (Lobectomy) at Local Hospital. In the AIIMS New Delhi reevaluation of disease was done. Biopsy review was suggestive of Undifferentiated Pleomorphic Sarcoma and CECT indicate stable disease. Medicines were prescribed and advised for regular follow up. In January 2017 Response assessment was done which showed disease progression. Under the head DIAGNOSIS AND STAGE it has been mentioned that "STS RT lung operated case (Bilobectomy).
10. The above all the facts and treatment history goes to show that the insured was suffering lung cancer he was given chemotherapy, radiation therapy as well as surgical intervention Lobectomy but these facts were concealed by him while making proposal for insurance. The facts concealed were material in nature hence the opposite parties Insurance Corporation were having right to repudiate the claim and in doing so they have not committed any deficiency in service. In the regard the principle laid down by the Hon"ble Apext Court in its judgement in the case of
Branch Manager, Bajaj Allianz Life Insurance Co. Ltd. Vs. Dalbir Kaur, 2020 SCC Online SC 848 is squarely applicable. That was a case in which from the medical records obtained during the course of the investigation it was clearly indicated that the deceased was suffering from a serious preexisting medical condition which was not disclosed to the insurer and in fact the undergone treatment for such medical condition was in proximity to the date of his death and said history was, in spite of specific queries, not disclosed in the proposal form. In such a situation it was held as material concealment of fact and insurance company was not held liable to pay any amount. The principle laid down by the Hon"ble Apex Court in its previous judgement in the case of Satwant Kaur Sandhu Vs.
7
New India Assurance Company Limited, (2009) 8 SCC 316 was also discussed in that case wherein it was held that : -
"In a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact" - If the proposer has knowledge of such fact, he is obliged to disclose it to insurer particularly while answering questions in the proposal form - Any inaccurate answer to said questions will entitle the insurer to repudiate its liability under the policy".
11. So far as the contention of the complainant that the proposed insured was physically got examined by the opposite parties by Dr. Amit Soni and upon his fitness report only the insurance policy was issued, is concerned the term used „Physical Examination" itself goes to show that the proposed insured was only physically examined on the basis of history disclosed by him, but when in his personal history he had concealed material facts, then the opposite parties cannot be faulted at on this ground. Had there been the case that all the correct information regarding personal history was given, then the opposite parties would have an opportunity to take decision accordingly or to underwrite in perspective those facts. But by concealing material facts regarding personal history of the proposed insured, the opposite parties were deprived of taking appropriate decision as per the actual state of health of the proposed insured. Thus, we do not find any substance this contention also, of the complainant.
12. Therefore, for the foregoing discussion, we do not find any substance in this complaint it accordingly fails and is dismissed. No order as to cost.
(Justice Gautam Chourdiya) (Gopal Chandra Shil) (Pramod Kumar Varma) President Member Member
/04/2023 /04/2023 /04/2023
Pronounced On: 21st April 2023
8