
Rinarani Majhi, W/o-Late Pradeep Ku. Nayak filed a consumer case on 19 Jul 2016 against Sr. Divisional Manager, L.I.C Co. Ltd. in the Debagarh Consumer Court. The case no is CC/37/2015 and the judgment uploaded on 01 Aug 2016.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
DEOGARH
Shri P. C. Mahapatra, Member and Smt.Jayanti Pradhan, Member
Rinarani Majhi,
W/O – Late Pradeep Kumar Nayak,
At – Women College Road,
PO/Dist. – Deogarh. … Complainant.
CD Case No.37/2015
Date of hearing 18.07.2016 Date of Order 19.07.2016
Counsel for the parties :
For the Complainant : Nemo
For the Opposite Parties : Shri Pramathesh Guru, Advocate.
O R D E R
PRATAP CHANDRA MAHAPATRA, MEMBER – The genus of the complaint lies in the fact that death claim by and under Insurance Policy was repudiated by the Insurer on the ground of suppression of material facts. Sucistinctly facts of the case, as averred by the complainant, Rinarani Majhi, wife and nominee of Deceased Life Assured ( in short DLA), Pradeep Kumar Nayak, resident of Women College Road, PO / Dist. Deogarh is as follows:
2. In response to the allegation labeled, answering OPs have stated in their Written Version as follows:
(h) In the context, the OPs have drawn our attention to the decision of Hon’ble Supreme Court of India in a case between Satwant Kaur Sandhu –versus-New India Assurance Company Ltd (2009) 8 SCC 316. Honble Apex court observed that the expression “material fact“ is to be understood in general terms to mean as any act which could influence the judgement of a prudent insurer, in deciding whether to accept the risk or not. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Any inaccurate answer will entitled the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering in to a contract of insurance which bases on the principle of utmost faith ubnerrimae fides. Good faith forbids either party from non-disclosure of the facts which the party privately knows to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. In (United India Insurance Co. Ltd – versus- M.K.J. Corporation (1996-6 SCC 428), it has also been emphasized that it is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known.
(i) That, admitting the contentions made in para 11 of the complaint petition OPs have contended that after considering the above facts, Hon’ble Insurance Ombudsman, Bhubaneswar had dismissed the complaint petition filed by the present compliant vide their order dtd.13.05.2015.
(j) That, to summarise and in response to the avernments made in Para 12,13 and 14 of the complaint petition , O.Ps humbly submited that there was no deficiency of service by this O.P nor perpetrated unfair trade practice by non-setting the claim of the complainant rather this O.P has rightly repudiated the claim in legal manner to protect the public money as a whole .
5. Having heard of the submission of the complainant and categorically examining the documents filed we find as here under:
"service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing, construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
Sec.2(d)(ii) of the Act reads as :
“2.(d) "consumer" means any person who-
(i)
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services of any commercial purpose;
Explanation.-For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;”
Sec.2(e) of the Act reads as :
"consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;”
Hence on conjoint reading of Sec.2(d)(ii) , Sec.2(e) and Sec.2(o) we are of the firm opinion that Complainant is a consumer and there exists a consumer dispute and as such maintainability of the case is neither bad in the eye of law nor ultra virus on the facts available on records.
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or “
(b) xxx
(c) the cause of action, wholly or in part, arises.
Cause of action is not defined in any legislation. As cause of action is a bundle of facts, the fact that has given rise to action against other party is called the cause of action. In Narayan Givaji Vrs. Gurumath Goud [ AIR 1939,Bombay] Bombay High Court have given the meaning of cause of action as has hereunder:
“A cause of action briefly means ‘ right and the infringement of that right’ where a party has an undoubted right and that right is infringed, a cause of action at once accrues to him.”
In the case of M/S- Monto Motors Ltd. Through its Director Vrs M/S- Shri Sai Motors through Shri G.Venkatesulu & Another [ 2013(3) CPR 182 (NC)] National Commission is of opinion that complaint can be filed within the local limits of the District Forum in which jurisdiction cause of action arises.
47. Opinion as to handwriting, when relevant :- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the hand writing of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation :- A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
In the instant case Complainant, wife of DLA, identified the signature on the Proposal Form adduced by OPs admitting and claiming to have been submitted by the DLA to procure a Life Insurance Policy, to be of her deceased husband and denied that the rest writtings on the Proposal Form to had been written by her husband. None otherthan wife can be most acquainted person with the handwriting of DLA. Further the said notarized document showing handwriting of Complainant’s deceased husband the Deceased Life Assured (in short DLA) [Exbt.P/23] has been testified by his Employer. Thus beyond doubt it is a relevant document. In accordance with Sec. 73 of the said Act, which reads as “ 73. Comparison of signature, writing or seal with others admitted or proved :- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.”- we compared hand writing on Proposal Form and on the notarized filed document [Exbt.P/23] and found that both handwritings are not of the same person. Also, hand writings of the signature on the Proposal Form and filled in particulars in that very Form are not of the same author. So we believe in the averment of complainant in Para – 3 of the complain petition and oral submission made by the Complainant during hearing and are of view that the agent has made the DLA sign over the blank Proposal Form and then have filled it up at his sweet will and submitted the Proposal Form in the Company’s Office. At no point of time OPs have filed any document or have stated that the Proposal Form alongwith the First Premium was received by them personally from the DLA. Under this premises it will be prejudiced to say that DLA has concealed any material fact himself applying hid own mind and reasoning.
“ 8. Code of Conduct. (1) Every person holding a license, shall adhere to the code of conduct specified below :-
xxxx
(g) bring to the notice of the Insurer any adverse habits or income inconsistency of the prospect, in the form of report ( called “Insurance Agent’s Confidential Report”) along with every proposal submitted to the Insurer, and any material fact that may adversely affect the underwriting decision of the insurer as regards acceptance of the proposal, by making all reasonable enquiries about the prospect;
(ii) No insurance agent shall,
xxxxx
(c) induce the prospect to submit wrong information in the proposal form or documents submitted to the insurer for acceptance of the proposal;”
"(1) Every agent shall solicit and procure new life insurance business which shall not be less than the minimum prescribed in these regulations and shall endeavor to conserve the business already secured.
(2) Inprocuring new life insurance business, an agent shall :
[a] take in to consideration the needs of the proposers for life insurance and their capacity to pay premiums ;
[b] make all reasonable enquiries in regard to the lives to be insured before recommending proposals for acceptance, and bring to the notice of the Corporation any circumastances which may adversely affect the risk to be underwritten ;
[c] take all reasonable steps to ensure that the age of the life assured is admitted at the commencement of the policy ; and
[d] not interfere with any proposal introduced by another agent.”
“ Section 186. Agents authority may be expressed or implied.
The authority of an agent may be expressed or implied See, however, the Indian Registration Act, 1908 (16 of 1908), s.33.See also the Code of Civil Procedure, 1908 (Act 5 of 1908), Sch.I, Order III, rule 4.
Section 187.Definitions of express and implied authority
An authority is said to be express when it is given by words spoken or written.An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.
Section 188.Extend of agents authority
An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act. An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.
Section 237.Liability of principal inducing belief that agents unauthorized acts were authorized
When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent's authority.”
The only question is whether the LIC can be held liable on the basis of the doctrine of apparent authority in view of Section 237 of the Indian Contract Act. By its conduct in receiving the First Premium through its agents We hold that the doctrine of apparent authority underlying Section 237 of the Indian Contract Act can be invoked. Section 45 of the Insurance Act, 1938 reads as hereunder:
Section45.Policy not to be called in question on ground of mis statement after two years
No policy of the life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act, shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement a. was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made] by the policy-holder and that the policy -holder knew at the time of making it that the statement was false b.or that it suppressed facts which it was material to disclose:
b. Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.
Honble Supreme Court in case of P.C. Chacko & Anr. Vs. Chairman, LIC of India (2008) 1 SCC 321 while holding as under:-
“Section 45 of the Insurance Act, 1938 (which prescribes that a life insurance policy cannot be called in question on ground of misstatement after two years) postulates repudiation of insurance policy within a period of two years. There are three conditions for application of second part of Section 45 of the Insurance Act which are (a) the statement must be on a material matter or must suppresses facts which it was material to disclosed; (b) the suppression must be fraudulently made by the policy-holder; and (c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
Misstatement by itself was not material for repudiation of the policy unless the same is material in nature. But, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. the purpose for taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered.”
In the instant case misstatement as to bodily deformity was beyond the reach of the DLA as it was made by different person apparently the Agent of LIC, who being bounden by law to report it to the Insurer had not acted in accordance with Law and since the onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer, LIC has failed to prove that DLA with fraudulent intention have suppressed his physical deformity by non adducing the Insurance Agent’s Confidential Report. Had it been adduced, mater would have been different as in that case DLA’s intention could have been resolved with accuracy. Furthermore, mere concealment of some facts will not amount to concealment of material facts, DLA cannot be said to have hide the material fact with fraudulent intention.
It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the Insurance Company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally.
Evidently, there has been a breach of this clear principle of uberrimae fides. xxxxxx
This again testifies our finding. Shri Kishore Kumar Sahu, Agent, acting on behalf of LIC, had done nothing to disclose the bodily deformity of DLA which he had ought to have done and thereby have done the act of breach of good faith. Hence How alone the complainant be punished for ?
I. Further, we examined the document filed by the complainant [Exbt.P/] Prescription made in favour of DLA by DR.Ranajit Kar, Consultant Clinical & Radiation Oncologist, Cancer Specialist of HCG Panda Curie Cancer Hospital,Telengapentha, Cuttack. DLA was detected of suffering from Metastatic Adeno Carcinoma of Left Neck of Femur i.e. Bone Cancer in common understanding which lead DLA to death. Suppressed material fact is Post Polio Paralysis of Right Lower Limb is not the cause of death.
J. Honourable Insurance Ombudsman, Odisha have erred in determining the petition of the Complainant not by taking into consideration (i) Proposal Form being filled up by Agent and (ii) Confidential Report required to be furnished by Agent to LIC of India, which is mandatory.
6. We are of firm opinion that LIC in the instant case, cannot wash off its liability by repudiating the claim of the complainant. We mention here in the case of Life Insurance Corporation of India Vrs. Smt. Asha Goel, I(2001) SLT 89 AIR 2001 SC 549 Hon’ble Supreme Court have observed that repudiation of a policy issued by the Life Insurance Corporation should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner. Repudiation here by LIC is deficiency in service and the complainant is entitled to relief under the Act. Hence I order as under:
O R D E R
Complaint Petition is allowed. The OPs representing Life Insurance Corporation of India Ltd jointly and severally are directed to pay the complainant, widow and Nominee of DLA Pradeep Kumar Naik the sum assured amount i.e. Rs.1,00.000 (Rupees one lakh) alongwith interest @ 9% p.a. from the date of filing of the complaint i.e. 21.11.07 till the payment is made. The opposite party is further directed to pay to the complainant a sum of Rs. 50,000/- (fifty thousand) as compensation for mental agony and pain and Rs.5,000/- (five thousand) as amount of cost of litigation within 45 days from today failing which the complainant would be entitled to get interest at the rate of 9% on Rs.55,000/- from today till the amounts are actually paid in due course of law.
Office is directed to supply the free copies of the order to the parties keeping acknowledgement of the receipt and date thereof.
Order pronounced in the open court today i.e. 19th day of July, 2016 under my hand and seal of this forum.
I agree
MEMBER (W) MEMBER
Dictated and Corrected
by me.
MEMBER
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