West Bengal

Dakshin Dinajpur

CC/15/2013

Smt. Savita Ghosh, W/O- Late Niranjan Ghosh - Complainant(s)

Versus

Divisional manager, LICI, Jalpaiguri Division, Jeevan Prakash - Opp.Party(s)

13 Sep 2013

ORDER

In brief, the case of the complainant / petitioner is that her husband Niranjan Ghosh, since deceased, obtained two L.I.C.I. policies from the OP-2 bearing Nos. 455420940 and 455446402, sum assured Rs.50,000/- and Rs.1 lakh on last 24.3.2008 and 12.12.2008 respectively. Her husband Niranjan Ghosh died on 5.3.2011 leaving behind his wife, son and mother as his legal heirs. It is the further case of the complainant that she is widow and nominee of late Niranjan Ghosh. According to the complainant, the policyholder, that is, her husband, since deceased, had been making payment of premium for the policies in due time and obtained proper receipts. Being the nominee of the abovementioned policies, the complainant submitted the claim forms claiming the death benefits from those policies with medical attendant’s certificate and other documents on 4.6.2011. On requisition by the OPs the complainant also filed other documents. It is the further case of the complainant that in spite of repeated reminders, the OPs failed to pay the policies amount as death benefits. As per the advice of the OPs, she requested the Zonal Manager, L.I.C.I. Eastern Zone for getting relief, but no effect at all. Lastly by the letters dated 7.12.2012 and 8.12.2012, the OP repudiated her claim. Hence, the instant petition of complaint was filed.

 

            Both the parties have contested the present case by filing a written statement / version inter- alia denying all the material allegations  made by the complainant in her petition of complaint. It is the main contention of the OPs (so far it can be gathered from their written statement) that the policyholder did not furnish all the vital information in the personal history column of the personal form in respect of his health as required for contract of insurance at the time of obtaining the policies by filling in the proposal forms. According to the OPs, on the basis of some documentary evidence they came to the conclusion that the policies were purchased with fraudulent intention. Accordingly, the claim

 

                                                                                                

was repudiated. It is the further case of the OPs that the contract has become null and void as the policyholder did not furnish correct statement in respect of his health at the time of obtaining the policies by filling in the proposal forms. The present case is malafide one. So, the OPs prayed for dismissal of the petition of complaint.

 

            From the materials on record we have come to the following finding.

FINDING with reasons

            Before passing this judgement we have carefully perused the petition of complaint, written statement and the other materials on record. It is admitted position that one Niranjan Ghosh, since deceased, who is the husband of the complainant Smt. Sabita Ghosh obtained two LICI policies being Nos. 455420940 and 455446402 sum assured Rs.50,000/- and 1 lakh on 24.3.2008 and 12.12.2008, respectively from the OP-2 and said policyholder Niranjan Ghosh died on 5.3.2011 leaving behind his wife, son and mother as his legal heirs. It is also admitted position that the present complainant is the nominee of late Niranjan Ghosh. It is the further admitted position that the policyholder had been making payment of premium for the policies in due time and obtained proper receipts. It is the main contention of the complainant / petitioner that being nominee of late Niranjan Ghosh (policyholder), she submitted the claim form claiming the death benefits from those policies with medical attendants certificate and other documents on last 4.6.2011. On requisition by the OPs, she also filed some other documents on 17.8.2011. But no effect at all. Ultimately, the claim was repudiated by the OPs on the strength of separate two letters dt. 7.12.2011 and 8.12.2011.

 

            Now, we will consider as to whether the claim of the complainant was repudiated by the OPs in accordance with law or not. At the time of hearing Ld. Counsel on behalf of OPs submitted before this Forum that

 

 

                                                                                               

there is / was no any error on the part of  OPs in repudiating the claim of the complainant as the policyholder did not make correct statement / furnish vital information in the personal history column of the personal form in respect of his health as required for contract of insurance at the time of obtaining the policies by filling in the proposal forms. Ld. Counsel on behalf of OPs further submitted before this Forum that prior to obtaining the policies, the policyholder Niranjan Ghosh, since deceased, had suffered from various diseases i.e. the policyholder had pre-existing diseases. But he did not disclose the same at the time of taking out the policies. So, complainant is not entitled to get any amount against death benefits. It is / was the further contention of the Ld. Counsel on behalf of OPs that the insurance policy is a contract and it is the duty of the policyholder to make a true and full disclosure of information within his knowledge to the questions asked in the proposal form and if the policyholder does not give any correct information that amounts to violation of the terms & conditions of the contract. In such cases the Insurance Company is entitled to repudiate the claim. In support of his above contention Ld. Counsel has referred to several decisions reported in Legal Digest July, 2011 (Panchal Ramabhai Motibhai vs LICI & Ors.), Legal Digest April, 2012 (Kamoda Devi vs LICI), C.P. Reporter VII 2012 (3) at page 32, C.P. Reporter XII 2009 (4) at page 443, C.P. Reporter VII 2009 (3) at page 35, we have carefully perused the said decisions. It is decided by the Hon’ble National Commission in the Legal Digest July, 2011 (Panchal Ramabhai Motibhai vs LICI & Ors.) that an Insurance policy is a contract entered between the two parties in utmost good faith and concealing any information or giving incompact information amounts to violation of its terms & conditions and in such cases the Insurance Company is entitled to repudiate the claim.

 

            Ld. Counsel on behalf of OPs submitted before this Forum that the policyholder Niranjan Ghosh, since deceased, had suffered from various diseases such as infection in foot, itching all over the body,

 

                                                                                               

weakness, burning pain and vertigo for which he had consulted with doctors and took treatment from them, but he did not disclose those facts in the personal history column of the personal form at the time of obtaining the policies.

 

            Now, we will consider as to whether the policyholder has made any deliberate misstatement and withheld material information regarding his health prior to obtaining the policies i.e. at the time of obtaining the policies or not. At the time of hearing the Ld. Counsel on behalf of the complainant submitted before this Forum that in case of repudiation of claim burden of proof heavily lies upon the Insurance Company. Ld. Counsel further submitted before this Forum that pre-existing diseases must be proved by documentary / medical  evidence and death claim cannot be repudiated for suppression of minor ailments. In support of his above contention Ld. Counsel has referred to large number of decisions reported in C.P. Reporter VI 2012 (2) at page 209, C.P. Reporter X 2012 (4) at page 231, C.P. Reporter IX 2012 (3) at page 384, C.P. Reporter II 2012 (1) at page 232, C.P. Reporter V 2010 (2) at page 340. We have carefully perused the said decisions which clearly support the above contention of the Ld. Counsel on behalf of the complainant. It is decided by the Hon’ble National Commission in the decision reported in C.P. Reporter II 2012 (2) at page 232 that the allegation of pre-existing diseases has to be proved by medical evidence. It is decided by the Hon’ble State Commission in the decision reported in C.P. Reporter V 2010 (2) at page 340 that unless and until a person is hospitalized for a particular disease and has undergone operation in the near proximity of obtaining the life insurance policy and is otherwise enjoying healthy life he cannot be held guilty for concealment of information.

 

            Now, we will also consider how far the OPs have been able to prove the allegation of pre-existing disease in the instant case. It is to

 

 

                                                                                                

be noted here that the policyholder Niranjan Ghosh died after two years from the date of obtaining the policies. So it can safely be said that claim in question is not at all early claim. We have already stated that it is the contention of the OPs that prior to obtaining the policies policyholder suffered different types of diseases such as infections, in left Toe, itching all over the body, vertigo, weakness, burning pain and left foot infection. According to Ld. Counsel on behalf of OPs the policyholder was examined by Dr. Santi Kr. Mandal on 31.1.2000. He was also examined by Dr. Mansh Kr. Maitra on 2.2.2008 and Dr. S. K. Das examined him on 20.2.2006 and 30.5.2006 respectively. In support of his above contention Ld. Counsel drew our attention to the xerox-copy of one medical prescription, which appears to be issued by Dr. Santi Kr. Mandal, xerox-copy of another medical prescription  dt. 2.2.2008 issued by Dr. Mansh Kr. Maitra, xerox-copy of another two medical prescriptions issued by Dr. S. K. Das. We have given the judicial notice upon the xerox-copies of the said medical prescriptions from which it is not at all clear that the policyholder was suffering from various diseases as mentioned above. Be as it may, date of prescription  issued by Dr. Santi Kr. Mandal is indistinct. Moreover, xerox-copy of the said prescription bears only name of some medicines. It is further seen from xerox-copy of medical prescription  dt. 2.2.2008 issued by Dr. Mansh Kr. Maitra that the said doctor is an Eye Surgeon and the said prescription does not reflect the nature of disease has suffered by the patient / policyholder. It is seen from the xerox-copies of medical prescriptions  issued by Dr. S. K. Das that he is a Homoeopath. Said xerox-copies the medical prescriptions also do not reflect the nature of disease. It is well- settled from the decision as referred to above by Ld. Counsel on behalf of the complainant that allegation of pre-existing diseases has to be proved by medical / documentary evidence. That being the above position of law we are of the view that the OPs ought to have examined in this case the doctors above named who examined the policyholder to prove that the policyholder suffered from various types of diseases as mentioned

                                                                                                

above as well as to prove the medical prescription  issued by the said doctors. But we are surprised enough as the OPs did not dare to examine the said doctors. No explanation is forthcoming from the side of the OPs for withholding them. It is well settled that suppression or destruction of useful evidence naturally leads to the inference that evidence, if produced, would go against the party who withholds it. Accordingly, we do not place any reliance upon the xerox-copies of medical prescriptions as referred to above. So, it can safely be said that pre-existing disease in the instant case has not been proved by any cogent evidence.

 

            We have further stated above that it has been decided by the Hon’ble State Commission  in the decision reported in C.P. Reporter V 2010 (2) at page 340 unless and until a person is hospitalized for a particular disease and has undergone operation in the near proximity for obtaining the life insurance policy and is otherwise enjoying healthy life he cannot be held guilty for concealment of information.

 

            Judging in the light of our above observation and having regard  to the facts and circumstances of the present case as well as with regard to the decisions above mentioned, we are inclined to hold that the policyholder cannot be held guilty for concealment of information. So it was rightly pointed out by the Ld. Counsel on behalf of the complainant that the OPs repudiated the claim of the complainant illegally. And as such, the complainant is entitled to get the relief / reliefs as prayed for. Hence, it is

                                                O R D E R E D

 

            that the petition of complaint be and the same is allowed on contest, but without any cost

 

             Both the opposite parties are jointly and severely directed to pay to the complainant the sum assured of Rs. 50,000/- and Rs.1 lakh

 

 

                                                                                                

against the policy nos. 455420940 and 455446402, respectively, along with interest @ 8% p.a. from the date of filing the claim petition i.e. from 4.6.2011 till the date of realization by issuing  two separate A/c payee cheques. The OPs are further directed to pay a sum of Rs.5,000/- only as compensation. Cheques be issued within 45 days from the date of this order.

 

            Let plain copies of this order be furnished to the parties forthwith free of cost.