Date of filing: 18th October 2004
CONSUMER COMPLAINT No. 75 OF 2004
Date of Order: 8th April 2009
Complainant (s) Opposite Party (s)
1.Rekharani Mahato, 1. Zonal Manager,LICI,
W/o. Late Jagadish Chandra Mahato. Eastern Zonal Office,
2.Tapati Mahato. Hindusthan Building,
3.Usha Mahato. 4,Chittaranjan Avenue,
4.Anupama Mahato. Calcutta.
5.Banashree Mahato. 2.Branch Manager,LICI,
All daughters of Late Jagadish Ch. Mahato, Jhalda Branch,
6.Sandip Mahato, P.O. & P.S. Jhalda,
S/o. Late Jagadish Ch. Mahato. District: Purulia.
Resident of : Neemtar, Purulia,
P.O., P.S. & Dist: Purulia
Present: 1. Shri A.K.Sinha, President-in-Charge.
2. Smt. S. Sengupta (Santra), Member.
For the Complainant (s) : Sri S.K.Sarkar, Adv.
For the O.P. No. 1 & 2 : Sri S. Patra, Adv.
Order No. 59 dated 08.04.2009/C.C.No. 75of 2004
The fact of the case in brief is that Smt. Rekha Rani Mahato and on behalf of her three minor daughters and one son alleged that her husband was a teacher who died on 16.9.2001 following an unnatural death. Over such death Purulia (T) P.S. UD Case No. 178/2001 was started and P.M. was done at Purulia Sadar Hospital on 16.9.2001 The deceased during his life
time subscribed LIC Policy Nos. 462067340, 462067378, 461027948, 461029198, 463551935, 463551467 and 463552623, 7 nos. in all. After the
death of the insured the petitioner approached O.Ps. for payment of the claim covered in the aforesaid policies. The O.P. promptly considered and paid the claim amount in respect of four of the policies and repudiated the claim against Policy No. 463551935, 463551467 & 463552623 by a letter dt. 27.12.2006 on the ground that the deceased had been suffering from Epilepsy since long and had died due to fall in a well following a sudden attack by Epilepsy.
The petitioner subsequently tendered her representation to the O.Ps. but till the date of filing the complaint the O.Ps. did not settle the claim on three of the policies noted above. This gives rise to the instant case for the reliefs as have been prayed for.
The O.Ps. have filed joint Written Version admitting therein, that, the deceased insured purchased policy no. 461027948 on 28.10.2001, No. 461029198 on 28.2.1995, No. 462067740 on 27.12.1997 and No. 462067378 on 28.10.1996 and they have allowed the basic sum assured with Bonus against the aforesaid four policies as non-early death claim taking lenient view without conducting investigation as per usual Rules & Regulations and claim in respect of three policies in question was repudiated as per contractual obligation on the ground of suppression of material facts. The O.Ps. have however referred to death claim guide line in the policy servicing manual no. II Chapter 2 Clause 2 wherein it was explain “ (1) Claims arriving within two years of the date of risk……. as early claims/premature claims and (2) Claims arising more than two years after the death of such risk or revival/reinstatement termed as other/ordinary claims”. The O.Ps. subsequently decided to repudiate all liability under the three policies in question on account of the deceased having withheld material information regarding health of insured at the time of effecting assurance with the company.
From the pleadings of both parties of above the following points are required to be scrutinize for effective disposal of the case.
1)Whether the service of the O.Ps suffers from deficiency?
2)Whether the petitioner is entitled to the reliefs as prayed for?
Point No. 1 & 2:
-:Decision with reasons:-
Both the points are taken together as these are interlinked.
The petitioner has filed photocopies of (1) Legal heir certificate issued by Pradhan of Uparkahan G.P. dt. 03.12.2002, (2) Receipts dt. 08.12.2001 issued by O.P. against surrender of eight nos. of policies, (3) Certificate of death issued by SDMO, Purulia, (4) Intimation to O.P. dt. 08.12.2001 about the death of deceased with prayer to release claim amounts against seven no. of policies and (5) Status report of policy nos. 463551935, 462551467 & 462552623.
The petitioner has filed affidavit-in-chief and has been cross-examined by the O.P. The PW has identified the signature of her husband in the proposal form of the above three policies in question when shown to her and the documents have been marked Exbt. A, B & C respectively. She stated that her husband died on 16.9.2001 at about 11.30 a.m. at her residence due to fall in the well, she got senseless and afterwards she came to know that fire brigade rescued the dead body of her husband. She further stated that she made no statement before police, police did not interrogate her and only on the date of incident police came to spot and thereafter did not turn up. She also admitted that the prescription of her husband were made over to LIC when asked for. The PW denied the suggestions that her husband was a patient of Epilepsy and made statement before police regarding such disease of her husband.
O.P.W 1 who has filed his examination-in-chief has identified letter dt. 19.11.2002 to O.P. by the petitioner along with the prescription received by O.P. on 22.11.2002 which have been marked Exbt. G and X respectively. He denied the suggestion of Ld. Counsel of complainant that all proposal forms were rooted through the agent and stated that suffering from Epilepsy is considered to be a bar for opening of a policy which is bar in under writing manual of LICI. OPW1 also admitted that they did not hold any enquiry as to whether the insured had been suffering from any ailment and their opinion as to the suffering of Epilepsy of insured was formed on the basis of final report of police in the U.D.Case. They never asked the beneficiary in respect of the policies of deceased insured against which the insured amount have already been paid and further stated that they had got paid up the amount of those policies by adopting fraudulent means.
On scrutiny of records it appears that the O.Ps in the W/V as well as in the Written argument claimed that the deceased insured purchased the following policies from the O.Ps during his lifetime.
1)Policy No. 461027948, sum assured – Rs. 30,000=00 dt. Of commencement 28.10.91.
2)Policy No. 461029198, sum assured – Rs. 50,000=00 dt. Of commencement 28.2.95.
3)Policy No. 462067740, sum assured – Rs. 1,00,000=00 dt. Of commencement 27.12.97.
4)Policy No. 462067378, sum assured – Rs. 50,000=00 dt. of commencement 28.10.96.
5)Policy No. 673551467, sum assured – Rs. 1,00,000=00 dt. Of commencement 28.6.99.
6)Policy No. 463551935, sum assured – Rs. 50,000=00 dt. of commencement 28.2.2000.
7)Policy No. 463552623, sum assured – Rs. 40,000=00 dt. of commencement 21.2.01.
But the petition of the complainant clearly manifest that the deceased insured purchased eight policies in all including policy no. 460802314 besides the policy no. referred to by the O.Ps. Such statement of the complainant is also confirmed when we securitized Exbt C series being the proposal form of policy no. 463552623 wherein in column 9 specified for mentioning previous insurance policy no. 460802314, sum assured Rs. 10,000=00 year of issue 1988 is reflected. The complainant also claimed that claim form with relevant documents were submitted to the O.Ps after the death of her deceased husband and the O.Ps have paid the sum assured with bonus in respect of Policy No. 460802314, No. 461027948, No. 461029198, No. 462067740 and No. 462067378 but repudiated the claim against Policy No. 463551467, No. 463551935 and No. 463552623.
Thus it appears that the O.Ps. have settled 5 policies of the deceased insured purchased during 1988 to 1996, out of eight nos. of policies referred to hereinabove considering non early death claim and without conducting investigation as per the usual Rules and Regulation of the corporation through strictly as per the contractual obligations all the claim for the policies were repudiated on the ground of suppression of material fact as referred in Para 7 of the written argument of the O.Ps.
Now the O.Ps. by repudiating the claim against policy bearing no. 463551467 dt. 28.6.99, sum assured Rs. 1 lack, No. 463551935 dt. 28.2.06 with sum assured Rs. 50 thousand and No. 463552623 dt. 21.2.01 with sum assured of Rs. Forty thousand being early claims under norms and made detail enquiry which established that the deceased assured willfully suppress his illness and there was suppression of material facts at the time of submitting proposal forms. The O.Ps. have cited Sec 45 of Insurance Act 1938 Clause 4.1 and 13.1 of Policy Servicing manual No. 11 as sufficient ground to consider the claim application and repudiation of same.
From the above discussion of evidence and material on record it has been evident that the O.P. had repudiated the claim of the complainant in respect of 3 policies being nos. 463551467, No. 463551935 and No. 463552623 purchased during the period from 28.6.99 to 21.2.01 on the ground of suppression of material fact in respect of health declared in the relevant column of the proposal form. It is also apparent that the ground of repudiation of the O.Ps based on 4 prescription of Dr. K.K.Sinha of Ranch, Bihar dt. 11.5.88, 23.11.88, 13.2.88, and 27.2.90 (marked Exbt. X), 3
proposal form (marked Exbt. A,B,C), letter of the petitioner to O.P. dt. 19.11.02 regarding sending of prescription of Dr. K.K.Sinha (Exbt.G) and copy of final report of Police in C/W U.D.Case No. 178/2001 (Exbt. D).
On scrutiny of Exbt. X series it appears that no where in the prescription the history of the patient nor the diagnosis has been noted by Dr. K.K.Sinha excepting advice of medicine. The doctor was not even examine in the witness dock to substantiate the contention of the O.P. that the insured got treatment of Epilepsy. On perusal of Exbt. D we find that the I.O. stated that “ in course of investigation it transpired that the deceased was a patient under Doctor K.K.Sinha, MD, FRCP, Ranchi since long and the diease was apparently one “Mrigi”. It appears from cross examination of PW1 that she clearly stated that police visited her house only on the date of incident, she was not even examined by the Police. Exbt. D is also not supported by any documents statement of witness and therefore, it is not substantiated that the deceased insured got treatment of Epilepsy by Dr. K.K.Sinha since long and apparently it was “Mrigi” . The evidence of OPW 1 clearly manifest that the O.P. did not hold any enquiry as to whether the deceased insured had been suffering from ant ailment of Epilepsy and the opinion to repudiate the claim was formed on the basis of Police Report in the U.D.Case. It is also stated that they never asked the beneficiary in respect of the policies against which the insured amount have already been paid.
The O.Ps have referred Sec 45 of the Insurance Act 1938 which is on fair reading it is clear that it is restrictive in nature. It lays down 3 condition for applicability of the second part of sec namely a) the mis- statement must be on a material matter or must suppress facts which it was material to disclose, b) the suppression must be fraudulently made by the policy holder and c) the policy holder must have known at the time of making statement that it was false or that it suppressed facts which it was material to disclose. Mere inaccuracy of (or) falsity in respect of some recital or item in the proposal is not sufficient. The burden of proof is on the insurer to establishe the circumstances unless the insurer is able to do so there is no question of the policy being avoided on the ground of mis-statement of facts (LIC vs. Asha Goel AIR 2001 SC 549).
In view of above observation of Hon’ble S.C. and the facts and circumstances discussed herein above it can safely be said that the insurer O.P. have failed to establish that deceased insured was suffering from epilepsy and there was misstatement and suppression of material facts in the proposal form in respect of three policies in question. Further it appears that all eight policies were purchased by the deceased insured during the period from 1988 to 2001 and the O.Ps. have considered the claim in respect of five policies amounting to Rs. 2,50,000=00 when Exbt. D and Exbt. X series were at hand and in repudiating the claim in respect of three other policies they have considered those two exhibits as vital documents for repudiation of the claim. Such plea of the O.Ps. appears arbitrary and does not find leg to stand on. In our opinion that the O.Ps. have scrutinized the above exhibits and other documents submitted to them by the complainant for her claim and the O.Ps. disburse the insured amount to his beneficiaries on application of mind about contractual obligation and the O.Ps. disbursed the insured amount to its beneficiaries.
Having given anxious thought over the matter this Forum has come to the conclusion that the O.P. have failed to establish the fact of mis-statement and suppression of material facts in respect of health of the deceased insured at the time of purchase of policy No. 463551935, 463552623 & 463551467. From the facts and circumstances which came to light from the evidences of both sides it can also safely be said that neither the disease of epilepsy could be proved nor its nexus with the cause of death could be substantiated. Therefore, the case of the O.Ps. is patently misconceived, far-fletched and wrong amounting to delay in settlement thereof and denial of the claim which is determined to be a deficiency in service as enumerated in the provisions of C.P.Act. This Forum has gone through the rulings appearing in 1996 CCJ 1368, 1995 CCJ 963, 1995 CCJ 35, 2003 CCJ 295 & 1994 CCJ 276 filed by the Ld. Counsel for the O.Ps. and this Forum has considered and found that these are not similar to the facts and circumstances of the case.
Both the points are thus disposed of in the affirmative.
Proper fees have been paid. Accordingly, it is
That Purulia Consumer Complaint Case NO. 75 of 2004 is allowed on contest against O.P.No.1 (Zonal Manager, LICI, Eastern Zonal Office, Hindustan Building, 4 C.R. Avenue, Kolkata) and O.P.No.2 (Branch Manager, LICI, Jhalda Branch, P.O. & P.S. Jhalda, District Purulia). Both the O.P.No.1 & 2 jointly and severally do pay the sum assured of Rs. 50,000=00 + Rs. 1,00,000=00 + Rs. 40,000=00 against Policy No. 463551935, 463551467 & 463552623, a total of Rs. 1,90,000=00 (Rs. One lack Ninety Thousand) only, of which the complainant No. 1 do get Rs. 60,000=00 (Rs. Sixty Thousand) only and all five minors namely, (2) Tapati Mahato, (3) Usha Mahato, (4) Anupama Mahato, (5) Banashree Mahato and (6) Sandip Mahato do get Rs. 26,000=00 (Rs. Twenty Six Thousand) only each within thirty (30) days from date failing which the entire decreetal amount shall carry interest @9% per annum till its final realization.
The complainant No. 1 do deposit the amount of each minor in the nearest Post Office/Nationalized Bank. Minor daughters may withdraw the amount in deposit in their respective names at the time of attainment of majority /marriage whichever is earlier, similarly, complainant No. 6 will withdraw the amount in deposit on attainment of majority.