Punjab

Ludhiana

CC/15/504

Shelza gupta - Complainant(s)

Versus

LIC of India - Opp.Party(s)

S.S.Heer Adv.

30 Nov 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 504 dated 26.05.2015.                                                        Date of decision: 30.11.2021. 

 

Shelza Gupta w/o. Late Sh. Rajan Gupta, 31 years, r/o. House No.52/5, Bagh Nauria Mal Jain, Jagraon Road, Near Bharat Nagar Chowk, Ludhiana.                                                                                            ..…Complainant

                                                Versus

L.I.C. of India, Unit-VI, Gill Road, Ludhiana through its Branch Manager.                                                                                                 …..Opposite party

Complaint Under Section 12 & 14 of the Consumer Protection   Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. S.S. Heer, Advocate.

For OP                           :         Sh. V.K. Gupta, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Bereft of unnecessary details, the case of the complainant is that her husband Rajan Gupta had purchased policy No.301852589 from the OP which commenced from 28.03.2011 whereby he was insured to the tune of Rs.10,00,000/-. A premium of Rs.51,510/- was paid. Rajan Gupta died on 05.09.2011 at C.M.C. Hospital due to cardiac arrest. After his death, the complainant submitted death claim in 2012. The OP repudiated the claim vide letter dated 14.08.2012. The repudiation was challenged by filing complaint No.820 dated 04.10.2012 which was decided vide order dated 04.10.2013 with an order to re-examine the death claim of the complainant qua deceased Rajan Gupta and to settle and pay the claim as per terms and conditions of the policy. The OP preferred an appeal before the Hon’ble State Commission, which was decided on 25.08.2014 on the basis of statement of counsel for the OP that the OP has paid Rs.5,000/- of cost of litigation awarded to the complainant and further that in case the complainant is aggrieved with the order passed by Hon’ble State Commission, the complainant shall be at liberty to file fresh complaint. During the pendency of execution application of order dated 04.10.2013, the OP submitted letter dated 31.03.2014 whereby the claim was reconsidered and again repudiated. According to the complainant, the repudiation letter dated 31.03.2014 is illegal, null, void and arbitrary and therefore, the repudiation letter is liable to be set aside. In the end, it has been requested that the OPs be directed to pay the claim of Rs.10,00,000/- assured sum of the policy No.301852589  known as Jeevan Anand along with interest @18% per annum from the date of submission of claim till realization along with compensation of Rs.50,000/-.

2.                The complaint has been resisted by the OP. In the written statement filed on behalf of OP, it has been, inter alia, pleaded that the life insured had withheld the important information regarding his health at the time of taking the policy. It has further been pleaded that in the history reported by the deceased to the doctors of Christian Medical College, Ludhiana it was admitted that he was diagnosed with HIV infection in the year 2006, but at the time of taking the policy, this fact was withheld  and the claim has been repudiated on this ground taking into consideration the certificate of hospital authorities and the death summary prepared by Christian Medical College and Hospital, Ludhiana. The other averments made in the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has also been made.

3.                In evidence, the complainant tendered her affidavit as Ex. CA along with documents Ex. C1 to Ex. C13 and closed the evidence.

4.                On the other hand, the counsel for OP tendered affidavit Ex. RA of  Sh. K.K. Arora, Manager L & HPF of OP, affidavit Ex. RB of Dr. Harish Sehgal, M.D. (Medicine), affidavit Ex. RC of Sh. Raman Kumar, Administrative Officer (Claims) of OP and affidavit Ex. RD of Ms. Shivani Goel, agent of OP along with documents Ex. R1 to Ex. R14 and closed the evidence.

5.                We have heard the counsel for the parties and gone through the written arguments submitted by both parties and have also gone through the record very carefully.

6.                During the course of arguments, the counsel for the complainant has argued that at the time of issuing the policy, all the relevant information was supplied to the OP by the husband of the complainant and nothing was concealed. Even the insured was medically examined by Dr. R.S. Maheswari who had given a report regarding the medical condition of the insured. Moreover, in the death summary Ex. C7, the cause of death is mentioned as cardiac arrest and no opinion has been given by any doctor that there was a close proximity between HIV infection and cardiac arrest. In fact, the deceased was got admitted in Christian Medical College, Ludhiana as dengue patient and continued to take treatment of dengue till 05.09.2011. Moreover, the OP has not placed on record any document that Rajan Gupta was suffering from HIV infection since the year 2006. In these circumstances, the repudiation of the claim cannot be said to be justified. In support of his arguments, the counsel for the complainant has relied upon 2016 (2) CLT 197 in Life Insurance Corporation Vs Gurpreet Kaur whereby it has been held by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh  that if the death of the insured took place due to cardiac arrest, the concealment of the disease of epilepsy is not a material concealment and cannot be made a ground to repudiate the claim. The counsel for the complainant has further relied upon 2016 (1) CLT 114 in LIC of India and another Vs Chawali Devi whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that only on the basis of recorded history of the deceased, it cannot be held that the deceased was suffering from breathlessness. The counsel for the complainant has further relied upon 2014 (3) CPC 24 in Bajaj Allianz Life Insurance Co. Ltd. Vs Raj Kumar whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the insurance policy was issued after authorized doctor of insurance company was satisfied with the fitness of insured and the death took place during the subsistence of the policy, the repudiation of the claim on the ground that the complainant has concealed pre-existing disease of blood cancer was set aside being not justified. The counsel for the complainant has further relied upon 2012 (3) CPC396 inn Sahara India Life Insurance Co. Ltd. and another Vs Smt. Hansaben Deepak Kumar Pandya whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the policy holder died of heart attack, the claim could not have been repudiated on the ground of concealment of pre-existing disease specially when the insurance company could not produce any evidence showing any proof of treatment taken by the deceased insured from any doctor.

7.                On the other hand, the counsel for the OP has argued that the claim has been repudiated by invoking clause 5 of the insurance policy Ex. R1. The counsel for the OP has relied upon 1962 AIR (SC) 814 in Mithoolal Nayak Vs Life Insurance Corporation of India whereby it has been held by Hon’ble Supreme Court of India that if there is fraudulent suppression of material facts by the policy holder whereby he concealed serious ailment, the proposer could not take advantage of the policy which stands vitiated. The counsel for the OP has further relied upon 2008(1) ALL MR 408 in P.C. Chako and another Vs Chairman, Life Insurance Corporation of India and others  whereby it has been held by Hon’ble Supreme Court of India that if the person obtained insurance policy by misrepresenting material facts, insurance company can repudiate the policy within 2 years and not after that. The counsel for the OP has further relied upon 2010(4) C.P.J. 86 in Kokilaben Narendrabhai Patel Vs Life Insurance Corporation of India whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the suppression of fact that the insurer was suffering from Enteric Fever 11 months prior to taking the policy, the repudiation of claim was held proper. The counsel for the OP has further relied upon 2009(9) JT 82 in Satwant Kaur Sandhu Vs New India Assurance Company Ltd. whereby it has been held by Hon’ble Supreme Court of India that if at the time of taking policy, the insured was suffering from Diabetic Nephropathy/Chronic Renal Failure and did not disclose this ailment while taking the policy which was within his knowledge, the repudiation was justified. The counsel for the OP has further relied upon 2009(1) C.P.C. 527 in Life Insurance Corporation of India and others Vs Sharda Devi whereby it has been held by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh that merely because the doctor has not noticed any disease of the insured at the time of filling up the proposal form or had given a good health report does not mean that the insured was not suffering from any disease as sometimes disease is lying hidden in the body which cannot be known by the doctor. The counsel for the OP has further relied upon 2012 DNJ 99 in Pushpadevi Babulal Punamiya Vs Life Insurance Corporation of India and another whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the life insured has not disclosed the true status of his health at the time of filling the proposal form, the repudiation was justified. The counsel for the OP has further relied upon 2012(3) C.P.J. 593 in Narinder Kaur Vs LIC of India whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the deceased has not disclosed that he was suffering from chronic Myeloid Leukaemia, the repudiation was proper. The counsel for the OP has also relied upon  2013(3) WBLR 674 in LIC of India and another Vs Vidya Rani and another whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the assured is under a solemn obligation to make true and full disclosure of information on the subject which is within his knowledge and it is not for the life assured to determine whether information sought for is material or not and if no explanation furnished for non-disclosure of this fact, the repudiation is proper. The counsel for the OP has further relied upon 2012 (3) C.P.J. 616 in Life Insurance Corporation of India Vs Gurubalappa Mallikarjun Umrani and others whereby it has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the repudiation of the claim was held to be justified on the ground that the insured did not disclose that he had undergone pyelolithotomy operation in 1998 and was suffering from kidney related disease since 1985.  The counsel for the OP has further relied upon 2019 (2) RCR (Civil) 909 in Reliance Life Insurance Co. Ltd. and others Vs Rekhaben Nareshbhai Rathod whereby it has been held by Hon’ble Supreme Court of India that if the repudiation has been made within two years period from commencement of insurance cover and the proposer was aware of  contents of form that he was required to fill, failure of the insured to disclose taking of policy of insurance from another company entitled the insurer to repudiate claim. 

8.                We have weighed the contentions raised by the counsel for the parties and have carefully gone through the record.

9.                In this case, the claim has been repudiated on the ground that the deceased was diagnosed to be case of HIV infection on HAART (Trimmune twice a day and CD4 count 850 and viral load of 2000 as of January 2011). It has further been claimed by the OP that the life assured was earlier suffering medical complications originating from HIV infection prior to taking of the policy and therefore, the claim was not payable. It has been pointed out by the counsel for the OP that in the policy Ex. R3, all questions were answered in negative by the life assured. In the proposal form, life assured denied suffering from any disease during last five years. He has further denied having been admitted in any hospital for a medical condition or operation. He further denied having ever suffered from any ailment pertaining to liver, stomach, heart, lungs, kidney, brain or nervous system and also from diabetes, tuberculosis, high blood pressure, low blood pressure, cancer, epilepsy, hernia etc. There is another specific question in the proposal form Ex. R3 that whether the life assured at any stage availed medical advise treatment or tests in connection with hepatitis B or AIDS related condition and in response to even this query, the life assured answered in negative. The proposal form Ex. R3 is duly signed by the life assured. Therefore, the fact remains that the OP denied having ever suffered from any disease much less disease of HIV positive/AIDS. In the death summary of the life assured Ex. R8 prepared by Christian Medical College, Ludhiana, it is clearly mentioned that the life assured has been a diagnosed case of HIV infection since January 2011.

10.              Now the question arises whether the claim could be rejected due to non-disclosure of the disease of AIDS by the life assured. In this regard, the counsel for the OP has relied upon Mithoolal Nayak Vs Life Insurance Corporation of India (Supra) wherein it has been held that in the case of fraudulent suppression of material facts by the policy holder, the policy gets vitiated and the assignee cannot claim benefit of the contract. The counsel for OP has also relied upon Kokilaben Narendrabhai Patel Vs Life Insurance Corporation of India (Supra) it has been held that suppression of fact that the life assured was suffering from Enteric Fever 11 months prior to taking the policy, is a valid ground for repudiation of the claim as the contract of insurance is based on utmost good faith. The counsel for OP has further relied upon Satwant Kaur Sandhu Vs New India Assurance Company Ltd. (Supra) whereby it has been held that the deceased did not disclose the fact of ailment such as Diabetic Nephropathy/Chronic Renal Failure  and died after 7 months of taking the policy and the repudiation of the claim by the insurance company was held to be justified. In the light of the law laid down in the cited cases by the counsel for the OP and considering the fact that HIC infection is a serious disease which permanently damages the immune system and reduces the immunity of a person to fight diseases. As a result, the person becomes vulnerable to disease and person suffering from AIDS/HIV are known to be quite susceptible. In this context, it is further pertinent to point out that even though the life assured was admitted with symptoms of fever which were later on found to be dengue and died of cardiac arrest but even then the fact remains that since the life assured was suffering from AIDS/HIV positive, his immunity must have been rendered pretty weak due to which he could not survive even days even though the age of life assured at that time was just 32 years. Therefore, the concealment/non-disclosure of the fact that the life assured was suffering from AIDS was very important and a relevant factor as it could always influence the decision of the OP to issue the policy or not.

11.              Much stress has been laid by the counsel for the complainant that the life assured was examined by the doctor of the OP who had certified him to be healthy in Ex. R2. In this regard a reference can be made to law laid down by the counsel for the OP Life Insurance Corporation of India and others Vs Sharda Devi (Supra) whereby it has been held that merely because the doctor ahs not noticed any disease of insured at the time of filling up the proposal form or he had given a good health report does not mean that the insured was not suffering from any disease as sometimes disease is lying hidden in the body which cannot be known by the doctor.

12.              The counsel for the complainant has further pointed out that the OP has not examined the doctor to prove that the life assured was suffering from AIDS and merely on the basis of discharge summary Ex. R8, it cannot be held that the life assured was suffering from HIV infection since January 2011. Even this contention raised by the counsel for the complainant does not appear to be tenable as the discharge summary and history of the patient is prepared by the doctor concerned on the basis of the information supplied by the patient himself. There appears to be no reason as to why the Dr. Jency Koshy, M.D. of Department of Medicine in Christian Medical College, Ludhiana who has prepared and signed the death summary Ex. R8 would wrongly mention of his own that the life assured was diagnosed of HIV infection in January 2011. So far as the other case laws relied upon by the counsel for the complainant are concerned, the same cannot be applied to the facts and circumstances of the present case. 

13.              As a result of above discussion, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

14.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:30.11.2021.

Gobind Ram.