1- Smt. Kiran Sharma wife of Sh. Naresh Sharma;

2- Rishita through guardian Mrs. Kiran Sharma;

3- Manik Kalia through guardian Deepak Kalia;

4- Veena Kalia;



All residents of 343-D, Bhai Randhir Singh Nagar, Ludhiana.



…..Complainants.

Versus



1- M/s Birla Sun Life Insurance Co. Pvt. Indiana Business Centre, B-Wing, Ist Floor, Marol-Naka, Akhawana Road, Andheri East, Mumbai, through its Manager.

2- The Branch Manager M/s Birla Sun Life Insurance Co. Pvt. Ltd., SCO No.124, Feroze Gandhi Market, Ludhiana.

3- Sh. Sandeep Miglani, Branch Manager M/s Birla Sun Life Insurance Co. Pvt. Ltd. SCO no.17, Ist Floor, near Secretariat, Chandigarh Road, Hoshiarpur.

…..Opposite parties.







O R D E R








1- Opposite party no.3 Mr. Miglani, branch manager of opposite party no.2, being a neighbourer of the complainant, approached them for investment of their money in different beneficiary plans. He convinced the complainant to do yearly plan in different ways and consequently, obtained cheque of Rs.1,49,000/- from them, to invest in different plans. At that time, Ms Veena Kalia complainant was planning to go abroad, so opposite party no.3 also obtained some post dated cheques with the idea that if she failed to come within time, amount of the cheque may be used as second premium. Opposite party no.3 made number of policies in different names as under:-



Sr. No. Names Policy Nos.



1. Rishita:- 000751331, 52143.



2. Kiran: 751308, 51291, 52180, 52151, 52168,

1532, 51298, 52174, 51317.



3. Manik: 51334, 51333, 51332, 51337, 51342.



4. Veena Kalia: 51958, 51870, 51930, 51488, 51481,

51947, 51468, 51885, 51897.





These policies were made by opposite party no.3, to meet out his contract and with vested interests. He instead of doing 4 policies, made 25 policies and when questioned why he made so many policies in placed of 4, had no answer. Complainants never signed 25 forms, nor had asked for half yearly policies. When second premium/renewal was withdrawn from the bank, came to know about the half yearly policies and it caused shock to all of them. Opposite party no.3 did all these policies in flexi plans, which was not desired by the complainant. He had never disclosed true facts about the policies and rather misled the complainants. All the policies were retained by opposite party no.3 with him. Now they want to cancel all these policies and if there are any charges for cancellation, they shall have to be born by opposite party no.3, as he prepared the policies without their consent or request.


Received letters dated 19.11.2007 and 11.12.2007 from opposite party no.1, requiring details of the cheques issued by the complainant, alongwith bank statements towards the policies. In the meantime, opposite party no.3 approached complainant Ms Veena Kalia, to sort out the matter and suggested not file any litigation. Then, Sh. Rakesh Sabharwal Adv. intervened and on his asking, gave time to opposite party no.3, but he failed to settle the matter. Thereafter, letter of opposite party no.1, was replied, but opposite party no.1 failed to solve the matter regarding policies, despite providing details and they have also failed to cancel the policies and refund the amount. Such act on their part, is claimed amounting to deficiency in service, by filing this complaint u/s 12 of the Consumer Protection Act, 1986.

2- Opposite parties in their joint written statement, have controverted allegations of the complainant. They averred that complainants applied and signed application dated 23.9.2006, by free will and consent, so complaint not maintainable and there is no deficiency in service on their part. Complainant had submitted application for insurance in the names mentioned in the application under various plans. Subsequently on receipt of application, initial amount, receipts were issued to the complainants in their respective names.


They were provided detailed description qua policy features including the premium amount to be paid, charges to be levied. After making themselves completely aware qua features of the policies and its terms, they paid the premium amount. Complainant Ms Kiran Sharma was allotted 9 policies; Ms Rishita 2 policies; complainant Manik 5 policies; Ms Veena Kalia 9 policies. Policy holders were made aware about the option of Free Look period of 15 days through its welcome letter delivered to the complainant, alongwith the policy contract. Under the Free Look option, if any discrepancy in the policy document is found, then applicant may exercise the free look option by informing the opposite party in writing. In such cases, request for change in plan could also be considered. But complainant did not avail of the Free Look option, to get rectified the error or to cancel the policies. Complainants accepted all the contracts.


As per terms of the contract dated 15th May, 2007, after six months they again paid second renewal premium, for all the policies but thereafter, failed to pay subsequent renewal premium and consequently, the policies got lapsed. Further pleaded that complainants through their counsel, issued second notice dated 11th January, 2008, withdrawing their first notice dated 11.12.2007. In the second notice, conveyed compromising the matter and that were satisfied with the terms and conditions on which the policies issued and agreed to continue with the same. Thereafter, opposite party received third notice dated 24th January, 2008, again alleging same facts, as alleged by the complainants in their first notice dated 22.11.2007. So, allegations of the complainants are confusing and wrong. Hence, there is no deficiency in service and complaint deserves dismissal.

3- Parties in support of their claims, adduced evidence by way of affidavits and documents. Stood heard through their respective counsels.

4- Though complainants in support of the allegations, have relied on affidavit Ex.CW1/A of Smt. Kiran Sharma complainant and also filed notices Ex.C1 dated 31.10.2007, Ex.C4 dated 24.1.2008, which were replied by opposite party vide reply Ex.C5 and Ex.C6 respectively.

5- Now question is whether opposite party no.3 befooled the complainants, by playing trick with them and despite instructions, instead of preparing 4 policies in favour of the complainants, prepared 25 policies, without their instructions.

6- Entire episode or the controversy can be decided, in view of notice Ex.RA dated 11.1.2008 issued by the complainants through their counsel Sh. Rakesh Sabharwal Adv. Perusal of that notice, which is proved by complainants, by examining its author as a witness, goes to show that the matter has been compounded by the parties and there is no dispute between them qua the insurance policies. According to Sh. Rakesh Sabharwal Adv., this notice was issued by him on instructions of his client i.e. Ms Veena Kalia complainant. Through this notice, she had withdrawn her earlier notice, sent through Sh. Kamaljit Sharma Adv., stating that the matter has been compromised.

7- However, complainant has also placed one certificate Ex.CW dated 20.7.2009 purportedly issued by Sh. Rakesh Sabharwal Adv. on his pad. Vide that certificate, the understanding brought between the parties, was not acted upon as per terms and conditions settled between them. Because Mr. Miglani (opposite partyno.3) had betrayed the same. But author of this certificate Ex.CW has not been examined to prove the same. Whereas opposite party to prove notice Ex.RA, had examined Sh. Sandeep Miglani opposite party no.3. Neither any prayer to examine him made, nor was recalled to prove the certificate Ex.CW. Therefore, it is not proved that certificate Ex.CW was ever given by Sh. Rakesh Sabharwal Adv. to the complainant.

8- In the instant case, statement of account Ex.C8 of the complainant, goes to show that second premium cheque qua the insurance policies, was also paid and encashed. Had there been any trick played by opposite party no.3, by preparing 25 policies, in place of 4, as asked for by the complainants, they would not have paid installments of the second premium. Even if there was any such aspect of committing trick with the complainant by opposite party no.3, parties had settled the same, as is apparent from notice Ex.RA.

9- In view of aforesaid aspects, we do not find any merit in the complaint and as a result, the same is dismissed. Parties are left to bear own costs. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

1- Smt. Kiran Sharma wife of Sh. Naresh Sharma;

2- Rishita through guardian Mrs. Kiran Sharma;

3- Manik Kalia through guardian Deepak Kalia;

4- Veena Kalia;



All residents of 343-D, Bhai Randhir Singh Nagar, Ludhiana.



…..Complainants.

Versus



1- M/s Birla Sun Life Insurance Co. Pvt. Indiana Business Centre, B-Wing, Ist Floor, Marol-Naka, Akhawana Road, Andheri East, Mumbai, through its Manager.

2- The Branch Manager M/s Birla Sun Life Insurance Co. Pvt. Ltd., SCO No.124, Feroze Gandhi Market, Ludhiana.

3- Sh. Sandeep Miglani, Branch Manager M/s Birla Sun Life Insurance Co. Pvt. Ltd. SCO no.17, Ist Floor, near Secretariat, Chandigarh Road, Hoshiarpur.

…..Opposite parties.






O R D E R









1- Opposite party no.3 Mr. Miglani, branch manager of opposite party no.2, being a neighbourer of the complainant, approached them for investment of their money in different beneficiary plans. He convinced the complainant to do yearly plan in different ways and consequently, obtained cheque of Rs.1,49,000/- from them, to invest in different plans. At that time, Ms Veena Kalia complainant was planning to go abroad, so opposite party no.3 also obtained some post dated cheques with the idea that if she failed to come within time, amount of the cheque may be used as second premium. Opposite party no.3 made number of policies in different names as under:-



Sr. No. Names Policy Nos.



1. Rishita:- 000751331, 52143.



2. Kiran: 751308, 51291, 52180, 52151, 52168,

1532, 51298, 52174, 51317.



3. Manik: 51334, 51333, 51332, 51337, 51342.



4. Veena Kalia: 51958, 51870, 51930, 51488, 51481,

51947, 51468, 51885, 51897.





These policies were made by opposite party no.3, to meet out his contract and with vested interests. He instead of doing 4 policies, made 25 policies and when questioned why he made so many policies in placed of 4, had no answer. Complainants never signed 25 forms, nor had asked for half yearly policies. When second premium/renewal was withdrawn from the bank, came to know about the half yearly policies and it caused shock to all of them. Opposite party no.3 did all these policies in flexi plans, which was not desired by the complainant. He had never disclosed true facts about the policies and rather misled the complainants.


All the policies were retained by opposite party no.3 with him. Now they want to cancel all these policies and if there are any charges for cancellation, they shall have to be born by opposite party no.3, as he prepared the policies without their consent or request. Received letters dated 19.11.2007 and 11.12.2007 from opposite party no.1, requiring details of the cheques issued by the complainant, alongwith bank statements towards the policies. In the meantime, opposite party no.3 approached complainant Ms Veena Kalia, to sort out the matter and suggested not file any litigation.


Then, Sh. Rakesh Sabharwal Adv. intervened and on his asking, gave time to opposite party no.3, but he failed to settle the matter. Thereafter, letter of opposite party no.1, was replied, but opposite party no.1 failed to solve the matter regarding policies, despite providing details and they have also failed to cancel the policies and refund the amount. Such act on their part, is claimed amounting to deficiency in service, by filing this complaint u/s 12 of the Consumer Protection Act, 1986.

2- Opposite parties in their joint written statement, have controverted allegations of the complainant. They averred that complainants applied and signed application dated 23.9.2006, by free will and consent, so complaint not maintainable and there is no deficiency in service on their part. Complainant had submitted application for insurance in the names mentioned in the application under various plans. Subsequently on receipt of application, initial amount, receipts were issued to the complainants in their respective names.


They were provided detailed description qua policy features including the premium amount to be paid, charges to be levied. After making themselves completely aware qua features of the policies and its terms, they paid the premium amount. Complainant Ms Kiran Sharma was allotted 9 policies; Ms Rishita 2 policies; complainant Manik 5 policies; Ms Veena Kalia 9 policies. Policy holders were made aware about the option of Free Look period of 15 days through its welcome letter delivered to the complainant, alongwith the policy contract.


Under the Free Look option, if any discrepancy in the policy document is found, then applicant may exercise the free look option by informing the opposite party in writing. In such cases, request for change in plan could also be considered. But complainant did not avail of the Free Look option, to get rectified the error or to cancel the policies. Complainants accepted all the contracts. As per terms of the contract dated 15th May, 2007, after six months they again paid second renewal premium, for all the policies but thereafter, failed to pay subsequent renewal premium and consequently, the policies got lapsed.


Further pleaded that complainants through their counsel, issued second notice dated 11th January, 2008, withdrawing their first notice dated 11.12.2007. In the second notice, conveyed compromising the matter and that were satisfied with the terms and conditions on which the policies issued and agreed to continue with the same. Thereafter, opposite party received third notice dated 24th January, 2008, again alleging same facts, as alleged by the complainants in their first notice dated 22.11.2007. So, allegations of the complainants are confusing and wrong. Hence, there is no deficiency in service and complaint deserves dismissal.

3- Parties in support of their claims, adduced evidence by way of affidavits and documents. Stood heard through their respective counsels.

4- Though complainants in support of the allegations, have relied on affidavit Ex.CW1/A of Smt. Kiran Sharma complainant and also filed notices Ex.C1 dated 31.10.2007, Ex.C4 dated 24.1.2008, which were replied by opposite party vide reply Ex.C5 and Ex.C6 respectively.

5- Now question is whether opposite party no.3 befooled the complainants, by playing trick with them and despite instructions, instead of preparing 4 policies in favour of the complainants, prepared 25 policies, without their instructions.

6- Entire episode or the controversy can be decided, in view of notice Ex.RA dated 11.1.2008 issued by the complainants through their counsel Sh. Rakesh Sabharwal Adv. Perusal of that notice, which is proved by complainants, by examining its author as a witness, goes to show that the matter has been compounded by the parties and there is no dispute between them qua the insurance policies. According to Sh. Rakesh Sabharwal Adv., this notice was issued by him on instructions of his client i.e. Ms Veena Kalia complainant. Through this notice, she had withdrawn her earlier notice, sent through Sh. Kamaljit Sharma Adv., stating that the matter has been compromised.

7- However, complainant has also placed one certificate Ex.CW dated 20.7.2009 purportedly issued by Sh. Rakesh Sabharwal Adv. on his pad. Vide that certificate, the understanding brought between the parties, was not acted upon as per terms and conditions settled between them. Because Mr. Miglani (opposite partyno.3) had betrayed the same. But author of this certificate Ex.CW has not been examined to prove the same. Whereas opposite party to prove notice Ex.RA, had examined Sh. Sandeep Miglani opposite party no.3. Neither any prayer to examine him made, nor was recalled to prove the certificate Ex.CW. Therefore, it is not proved that certificate Ex.CW was ever given by Sh. Rakesh Sabharwal Adv. to the complainant.

8- In the instant case, statement of account Ex.C8 of the complainant, goes to show that second premium cheque qua the insurance policies, was also paid and encashed. Had there been any trick played by opposite party no.3, by preparing 25 policies, in place of 4, as asked for by the complainants, they would not have paid installments of the second premium. Even if there was any such aspect of committing trick with the complainant by opposite party no.3, parties had settled the same, as is apparent from notice Ex.RA.

Birla sun life

Case No. FA-09/358

(Arising from the order dated 19-02-2009 passed in complaint No. OC-203/06 by the District Consumer Redressal Forum – VI, K.G. Marg, New Delhi)





M/S BIRLA SUNLIFE INSURANCE CO. LTD - APPELLANT

204-Ashoka Estate,

24-Barakhamba Road,

New Delhi – 110001



Versus





SMT RICHA GOEL - RESPONDENT

W/o late Shri Ashok Goel,

R/O BT – 47, Shalimar Bagh,

Delhi - 110088





CORAM :
JUSTICE BARKAT ALI ZAIDI - President

SHRI M.L. SAHNI - Member



1. Whether reporters of local newspapers be allowed to see the judgment?

2. To be referred to the Reporter or not?





SHRI M.L. SAHNI (ORAL)



ORDER



1. M/s Birla Sunlife Insurance Co. Ltd. (hereinafter referred to as appellant) have filed this appeal against the order dated 19-02-2009 passed by the District Consumer Redressal Forum, New Delhi whereby the appellant/OP have been directed to pay a sum of Rs. 4,59,368/- being the entire insurance amount of Rs. Five lakhs minus the refunded premium of Rs. 40,632/-. The Ld. Forum has also awarded compensation of Rs. One lakh against the appellant on account of deficiency in service and for mental agony and harassment caused to the complainant (hereinafter referred to as respondent).



2. Facts giving rise to this appeal, precisely stated, are that Shri Ashok Goel, deceased-husband of the respondent took an insurance policy on his life for an amount of Rs. Five lakhs from the appellant. The application form of the policy was filled in by the deceased on 28-02-2005 and he was subjected to medical examination conducted by the medical officer of the appellant. The appellant thereafter issued policy charging premium of Rs. 40,632/- which was paid by the deceased on 28-02-2005. Unfortunately, the said Shri Ashok Goel, husband of the respondent died on 20-07-2005 and the respondent informed the appellant of his death. She also submitted claim form alongwith requisite documents but the appellant repudiated the claim on the ground that the deceased had been suffering from pre existing diseases. The respondent then filed complaint before the District Forum praying for direction to the OP/Appellant for disbursement of claim amount of Rs. Five lakhs with compensation after setting off the premium amount of Rs. 40,632/- already refunded by the appellant.

3. When the appellant appeared in response to the notice issued by the District Forum, they pleaded that the claim of the respondent was repudiated because the deceased, husband of the respondent had suppressed material facts regarding to his health in the application form while applying for insurance on 28-02-2005.



4. After the parties filed their evidence before the District Forum, the matter was heard and decided against the appellants as stated above relying upon the view held by this Commission in various decisions on the point of pre-existing diseases. The Ld. Forum came to the conclusion that the appellant by returning premium on the policy paid by the deceased-husband of the respondent was nothing but a ploy to defeat the claim of the respondent. According to the Ld. District Forum, the appellant should not have done so after they had once accepted the premium and issued the policy which could be revoked, because the liability was continuous. According to the Ld. Forum returning of the premium after the death of the insured does not absolve the appellant of their liability to pay the insurance amount to the nominee of the insured who in this case is his wife the respondent.

5. We have heard the Ld. Counsel appearing on behalf of the appellant and have carefully gone through the grounds of the appeal.



6. It is submitted on behalf of the appellant that the impugned order is contrary to the settled principles of Law because Section 2 (1)(d) of the Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests Regulations, 2002) provides:

“Proposal form means a form to be filled-in by the proposer for insurance, furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk and in the event of acceptance of the risk to determine the rates, terms and conditions of a cover to be granted. Also “Material” for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of Underwriting the risk to be covered by the Insurer. Further, Section 11 of the aforesaid Act, states that the Policyholder shall furnish all information that is sought from him by the insurer and also any other information which the insurer considers as having a bearing on the risk to enable the latter to assess properly the risk sought to be covered by a policy. Thus it is evident that the Act also imposes a duty upon the Policyholder to disclose all the material facts to the insurer to enable them to assess the risk to be undertaken”.



7. It is further submitted that insurance is done on the basis of doctrine of ‘Uberrima Fidei’ and there was no reason for the Appellant to verify the correct facts stated in the Application. To this extent it can be said that material facts were not disclosed by the Life assured, and, therefore, the appellant was entitled to repudiate the claim”.



8. Denying the allegations of the respondent made in her complaint before the District Forum that the application for taking the insurance policy was filled-in by the agent of the appellant and that policy was issued after the medical panel of the appellant thoroughly examined the deceased and found him in perfect health condition, they submitted that the medical examination of the deceased was done in routine manner on the basis of the information provided by the deceased and at the time of test, he had concealed vital information about his previous medical history i.e. suffering from hypertension and Ischaemic Heart disease and angiography and therefore the decision of the appellants had been influenced while issuing the policy. Since the vital information has been concealed about his pre existing disease for the last five years and his having undergone angiography in 1998 was nothing but suppression of “material facts” on the record about his health. The appellants, therefore, repudiated the claim of the respondent vide their letter dated 05-10-2005 and also refunded the premium amount vide cheque no. 589817 dated 03-10-2005 which was encashed by the respondent.



9. Since it is an admitted fact by the appellant that before issuing the policy the deceased has been subjected to medical examination by their medical officer or panel of medical experts who found the deceased in perfect health, they cannot be allowed to take the plea now after the death of the husband of the respondent that he had concealed the pre-existing diseases; or that he was guilty of suppression of material fact. If so, what was the purpose of subjecting him to medical examination? Their plea of pre medical check up was influenced by the wrong information supplied does not absolve them of their liability. The purpose of medical check up before issuing insurance policy is always to ensure that the person whom they are issuing the life insurance policy suffers from no disease whatsoever a disease as per the opinion already formed by this Commission means a serious derangement of health and chronic deep-seated disease for which a person is frequently suffering and for which the insured has frequently been hospitalized or operated upon in the near proximity of time of obtaining the insurance policy. As per the appellant’s own case the deceased had been suffering from hyper tension and Ishcaemic heart disease for the last five years and undergone angiography on 09-11-1998. The policy was issued on 28-02-2005 after accepting the premium of Rs. 40,632/-. The angiography had been done on 09—11-1998. By the no stretch of reasoning can it be said in the close proximity to the date of the policy. The diseases like hyper tension and heart problems from which the deceased was allegedly suffering do not require frequent hospitalization. Nor these could be called derangement or chronic deep-seated diseases.

10. The Ld. District Forum has rightly held that the claim of the respondent could not have been repudiated by taking the plea of such diseases mentioned in the discharge summary of the deceased-insured by invoking “exclusion clause” or on the ground of “non-disclosure of pre existing diseases”. There was no concealment or no hospitalization or operation for the Omission to mention of diseases like hyper tension and ischaemic heart disease, modern-life-diseases in the proposal form cannot be considered as concealment of material facts to disentitle the insurer of his/her rightful claim for which a hefty amount has been charged as premium by the appellant.



11. This Commission has observed in similar matters in past that if the insurer concealed the facts that he is having pain in chest or worries but has never been diagnosed for any serious ailment requiring surgery and sudden hospitalization for the said purpose does not defeat his rightful claim on the ground of non-disclosure of material facts while applying for the insurance policy.



12. As a result of the above discussion, we find that there is no merit in the appeal which is liable to be dismissed at the admission stage.



13. We, therefore dismissed the appeal in limine.



14. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.



15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.



16. Announced on 23rd November 2009.

COMPLAINT NO.52/2009

(Admitted on 27.02.2009)

PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2. Smt. Sulochana V. Rao, Member

3. Sri. K. Ramachandra, Member

BETWEEN:

Smt.Shashikala Poojary,

W/o. Lokesh P.

R/A. KFDC-4-98-4,

Kavoor, Near PWD Quarters,

Bondel, Mangalore – 575 008. …….. COMPLAINANT

(Advocate for the Complainant: Sri.K.S.Udayanarayana).

VERSUS

1. The Manager,

Birla Sunlife Insc. Co. Ltd.,

Registered. Office at 6th Floor,

Vaman Centre,

Kakwana Road,

Off Andheri Kurla Road,

Near Marol Naka,

Andheri East,

Mumbai – 400 059.



2. The Branch Manager,

Birla Sunlife Insc. Co. Ltd.,

2nd Floor, Premier Enclave,

Light House Hill Road,

Mangalore – 575 001. ……. OPPOSITE PARTIES



(Advocate for the Opposite Parties: Sri.M.S.Krishna Prasad)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.

The Complainant is the widow of the policy holder Lokesh P who obtained Saral Jeevan Policy from the Opposite Parties for a face value of Rs.90,000/- bearing policy No.00144021 dated 6.2.2008. It is submitted that subsequently obtaining the aforesaid policy the insured Lokesh P., suddenly fell ill and was hospitalized in Omega Hospital and died on 9.4.2008. After the death the Complainant preferred a claim before the Opposite Party, the Opposite Parties after a long period replied that the insured had pre-existing disease at the time of obtaining the policy and repudiated the claim. It is stated that the insured was in good health and there was no such illness and the repudiation made by the Opposite Party amounts to deficiency and hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.90,000/- along with interest and also pay Rs.1,00,500/- as compensation and cost of the proceedings.


2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed common version and contended that the repudiation was proper. It is stated that the life assured issued a non-medical policy on the basis of the information provided by him on February 6, 2008. It is stated that life assured was suffering from type 2 diabetes and had a history of coronary artery disease which was not disclosed while obtaining the policy. It is contended that the insured had suppressed the true facts while obtaining the policy and contended that the Complainant is not entitled for any claim and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(iii) What order?

4. In support of the complaint, Smt.Shashikala Poojary (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 and C2 were marked for the Complainant as listed in the annexure. Opposite Parties not filed counter affidavit. Ex R1 to R4 were marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:

Point No.(i): Negative.

Point No.(ii) & (iii): As per the final order.
Reasons

5. Point No. (i) to (iii):

In this case, it is admitted that the Complainant’s husband Lokesh P had obtained Saral Jeevan policy from the Opposite Party for a sum of Rs.90,000/- under the policy No.00144021 dated 6.2.2008. When the policy was in force the insured suddenly fell ill and was hospitalized in Omega hospital at Mangalore and died on 9.4.2008. After that the Complainant who is the legal heir approached the Opposite Party and submitted all the claim papers for reimbursement of the policy. But the Opposite Parties repudiated the claim stating that the insured was suffering from pre-existing disease and which has been suppressed by the insured at the time of obtaining the policy. The Complainant contended before the FORA that the repudiation made by the Opposite Party is not justified.

The Opposite Parties contended that the insured had pre-existing disease and the same has not been informed to the Opposite Party at the time of obtaining the policy and contended that the legal heirs of the insured is not entitled for any claim.

Now the only point for consideration is that, whether the Opposite Parties justified in repudiating the claim for suppression of material facts? Further the question is whether the insured had any ailments prior to submitting the proposal form to obtain the policy? In a case of suppression of material facts the onus to prove the case on the Opposite Party. However, the Opposite Parties produced Ex R1 to R4. The Complainant examined as CW1 and produced Ex C1 and C2.

The documents produced by the Opposite Parties reveals that one Lokesh i.e., the husband of the Complainant was working as a peon in Karnataka Forest Development Corporation Limited opted for Saral Jeevan plan with policy terms of 15 years. The life assured gave an application for non-medical policy on 24.1.2008 i.e., Ex R2. On perusal of the application form the life assured had given a declaration that whatever the information provided in the application are true and complete. And also stated that there is no changes in his health and circumstances between the date of the application and prior to the acceptance of the risk. And thereafter the life assured was issued with the above policy on the basis of the information provided in the above said application. This fact is not disputed by the Complainant. The Opposite Party vehemently contended that the life assured i.e., insured was suffering from type 2 diabetes since last 10-12 years and suppressed the previous pre-existing diseases. In order to prove the above contention, the Opposite Party produced discharge summary issued by the different hospitals i.e., A.J. Hospital Research Centre Mangalore and Omega Hospital Mangalore. On careful scrutiny of the discharge summary issued by the A.J. Hospital and Research Center, wherein the said document discloses that the insured Lokesh was admitted to the above hospital on 28.2.2008 discharged on 5.3.2008. The above said Lokesh admitted to the above said hospital with the following clinical presentation which reads thus:-

“48 years old male presented with h/o worsening chest discomfort since two days. H/o effort angina Class II since two months. Family h/o CAD. He is a known diabetic on treatment. Admitted to the above said hospital for further management”. And thereafter the insured Lokesh admitted to the Omega Hospital on 1.4.2008 and discharged on 9.4.2008 with the history of CAD (Coronary Artery Disease and died in the above said hospital on 9.4.2008. The case sheets produced by the Opposite Party clearly reveal that the life assured had consulted twice on 28.02.2008 and 1.4.2008 and the medical history of the assured shows that the life assured was diabetic – on insulin. The discharge summary issued by the A.J. Hospital clearly reveals that the assured had a history of effort angina class II since two months and known case of diabetic and admitted to the hospital for further management. And also he had a family history of CAD (Coronary Artery Disease). On diagnosis the above hospital found that the insured P.Lokesh suffering from coronary artery disease, diabetes mellitus, double vessel disease, mild LV dysfunction. On careful scrutiny of the above discharge summary it is proved that the life assured suppressed his disease while obtaining the policy with the Opposite Party Company.

In our opinion, no doubt the non-disclosure of the fact that the deceased was suffering from fever or down with flue on some occasions or blood pressure, we can say the simple disease like curing within short period is not material. The failure to disclose the same cannot be construed as suppression of the relevant fact.

As laid down by the Supreme Court, it is not suppression of the facts which is sufficient to attract 2nd para of Section 45 of the Insurance Act but what is requires is that such suppression should be fraudulently made by the policy holder. The expression ‘fraudulently’ connotes deliberate and intentional falsehood or suppression, some strong material is required before concluding that the policy holder had played a fraud on the Company. The terms of the policy makes it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties. We have gone through the application form submitted by the insured. From the reading of the above application makes it clear that the insured Lokesh P concealed the material information with regard to the earlier ailments. In the given case, undisputedly the insured deceased Lokesh died on 9.4.2008 due to coronary artery disease. Now the point for consideration is that the cause of death itself shows that he had a pre-existing disease with regard to the disease suffered by the insured at the time of death. The consideration is that the cause of death has no relevance with regard to the answer given by the insured at the time of submitting the proposal form. It is to be considered that whether he has disclosed the treatment taken by him for several ailments in different hospitals/doctors at the time of submitting the proposal form before the company. The circumstances that Lokesh P concealed that he had been treated for ailments just a month before the policy was taken.

In the given case, it showed that the falsification or concealment had an important bearing in obtaining the policy. A man who has so acted cannot after words turn round and say there is no pre-existing disease or there is no nexus between the cause of death and earlier ailments. The earlier ailments suffered by the insured itself shows that the insured had nexus with the cause of death and the disease suffered by him. Under such circumstances, it is evident that the insured Lokesh P should have disclosed the treatment/hospitalization taken by him in his proposal form instead of giving false information. The contention taken by the Complainant in this case is not acceptable because we need not say that the insurance contracts are ‘uberima fides’ and are founded upon utmost good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the other. This legal proposition has been reiterated time and again by the Hon’ble Supreme Court, Hon’ble National Commission as well as various State Commissions.

In so far as filing of the proposal form is the main duty of the insured and he should disclose all the material facts with regard to pre-existing disease. In the present case, in all the angle it is a clear case of concealment of material facts with regard to the ailment of the insured. The declaration given to the effect that the deceased never suffered nor had been suffering from any disease and suppressing the real fact is not legal and not contract.

In view of the above discussion, we are of the considered opinion that it is a fit case of suppression of material facts with regard to his earlier ailment. By considering the above facts and circumstances, there is no deficiency on the part of the Opposite Party and the repudiation made by the Opposite Party is justified. We see no merits in this complaint filed before us is hereby dismissed. No order as to costs.


6. In the result, we pass the following:
ORDER

The complaint is dismissed. No order as to costs.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

Dear Sir, I have bought a policy which no is 005374813. My policy is 25000 hly. I paid a cheque of Rs 25000 in feb2012. Advisor Name is Probus Insurance Broker Ltd and Advisor Code is 002470 .Again same agent came my home and take a cash of Rs 25000.After this, they are out of my contact. Their name are Mr Gorav Sharma and Viren
Please help me
Thank u
Hiralal Yadav
9414490493

ACS advisory services ppl call me as direct company staff of HDFC life and birla Sunlife ! I got to know they are corporate agents of both. So they must b enjoying hefty commison.I request u to take action sir, against such frauds. I got to know when the called once from their no. and when i call back a recorded voice answers-Welcome to ACS money instead of HDFC or birla Sunlife !They also provide relevant info but wana say what they want 2 sell .Ban them.

Respected sir,
I had purchased a BSLI Platinum -Life term on 01/01/2010. I have already deposited 03 installment for sum of rupees twenty five thousand per annuam. Now I have surrendred this policy after paying premium for 03 yrs.Ihave paid Rs seventy five thousand(75000/-). Only fifty two thousand (52000/-)has been recd by me. I want to know my each and every transiction against my said policy number after surrendered the policy. The same policy was issued by me through Mrs Meenakshi viswakarma(JB1823),belongs to Jabalpur.

I want your coperation for investigation regarding benifits which is applicable to me . As I am not getting any response from Mrs Meenakshi viswkarma.

My policy No 003920914 issued from Birla Sun life , This matter already escalted to BSLi and that time they accepted own mistake. But again as per below mail my facing issues with BSLI from last 2-3 months, i had submitted by medical calim for the month of Dec 2012 at end of december 2012 to TTK TPA of BSLI and after so many follow up i got the information from TTK that there are some requirement. With in 10-20 days i had completed all the requirement of TTk dated 18.02.2013 by email. After that i got the information from TTK that BSLI has been changed the TPA from TTK to MD india and we had sent all the your documents to MD india. From that onwards i was touch with MD india and so many calls with them got the information that they have received the documents from TTK and proceed for checking. Now resently i get the information threw call centre of MD india that your papers has been checked & verified and proceed for payment. But dated 16.03.13 i agian called to call centre of MD india & got the requirement of docs as earlier generated by TTk, so earlier they has confirmed that they have received all the documents and proceed for payment now they have changed the communication and says sorry for miscommunication. This is method to accept by BSLI & team for non - resolve of medical benefit and says sorry for all the things. If i had submitted all the documents to both BSLI & TTK then why they are again asking the same. & they bheaving like same with consumers at the time of claim reimbursement.@ At the time of policy take my intention was to take the relief on basis of medical health benefit but now i m facing problems. Now i have decided that i want to forcloser of my medical policy no 003920914 as as per my policy bond i have sum assured amount of Rs. 10 lacs for 20 years@ means 50 k per year and BSLI have the norms to pay three year continue other wise it would be lapsed so we can assume that sum assured for 3 years is Rs. 10 lacs and i had completed my three year so please reimbursement of 10 lacs as a 100% claim statlement of mis-communication held by BSLI & team. So this is requesting to all of you i am a working guy and don't have so much time to waste for these types of activities so please take a required action on urgent basis & for further information please update to me or arrange a recall with me.

To,
Consumercourt.in


SUB: Investigation done by Birla Sun Life Insurance but now
they regret their inability to do anything

Dear Sir,

I, Baljinder Singh, resident of Wz-110,G-Block, Hari Nagar, New Delhi-110058, wants to draw your attention towards fraud done to me by Birla Sun Life Insurance company/ their executives/ agents. Even they had thoroughly investigated the matter & found my details to be correct but now they are replying that they regret their inability to do anything for me.

Sir, In 2007-08, I had purchased your policy amounting Rs 13,000/-. Due to some circumstances, I couldn’t able to continue it next year and I thought the money I invested had gone in vain as I didn’t knew how to revive the policy when premium is not paid on time.

After two years, Birla Sun Life Insurance agent named Rakesh Mob No: 9871204833 & one Senior Manager from Pritampura Branch called me up and told me that they can revive my back date policy provided I have to submit my old policy+ interest charges for reviving. As desired, I had given them these things.(Rs 12000 chq No67835 dt 13/09/2010) In spite taking all these things, they also took my signatures on a plain Blank sheet stating that they will write a letter for revival on their own on that paper in office & it will be used by Birla Sun Life Insurance Company for their record.

Sir, all these things done by their executives/agents contribute to a big fraud played on me. Last to Last year when I reached nearest Birla Office to pay the 3^rd Premium of this revived Policy, I was shocked to what the person collecting premium told me. He told me it’s a new policy not any old revived policy which means the old policy was never revived by Pritampura Branch executives instead they fooled me by giving me a new one. The signatures in the Policy is also not mine, looks like someone who filled the form tried to copy but failed as difference looks so clear with naked eye. He signed as Baljitender Singh instead of my name Baljinder Singh. The form is also not filled by me. The Birla Sun Life Company had already checked my signatures attested by Bank & self. Through this verification of sign, they are now able to know that it was fraud done to me by their executives. But they are now after serious investigation expressing their inability to do anything for me.

I didn’t knew the correct procedure to file the complaint. Then after few months I registered the complaint online. My complaint token number was BSLI-P-2012-004905.

I had already given Birla Sun Life Insurance Co everything they required to investigate the matter as demanded by them through their letter dated 23 Feb 2013 i.e. my complaint letter, facts I produced, my Signature proof, Photo Id proof & copy of their letter/communication.

After their serious investigation, they wrote me on 3^rd Apr 13 that they regret their inability to do anything now. They wrote that they can’t cancel the policy & refund the premiums.
But in my complaint letter to them I not only demanded for refund of the sum of my 2 premiums paid but also given them the option to revive my old lapsed policy for which I had given Rs 12000 chq No67835 dt 13/09/2010 and accept 3^rd premium. I was cheated/fooled by their executives who copied my sign on new policy & provided me new policy against my wish. It was totally their fault & after examining the details of this case by Birla Sun Life Insurance Co they regret their inability to do any of these things.

I hereby request your kind self to instruct Birla Sun Life Insurance Co to take immediate strict action against these persons who had done fraud to me, copied my sign on new policy and fooled me. I would also like you to question Birla Sun Life Insurance Co as why they had investigated the matter if they can’t do anything.

I, being a middle class common man, cheated by Birla Sun Life Insurance Company urge you to instruct Birla Sun Life Insurance Co to pay me the sum of my 2 premiums I had deposited or else revive my old policy and accept 3^rd premium.


CC To:

1. Economic Offence Wing,
Mandir Marg,
New Delhi-110001


2.
Office of the Insurance Ombudsman,
2/2 A, Universal Insurance Building,
Asaf Ali Road,
New Delhi – 110002
Tel.:- 011-23239611/7539/7532
Fax:- 011-23230858
Email:-iobdelraj@rediffmail.com