Sri Utpal Kumar Bhattacharya, Member

Instant Appeal under section 15 of the C.P.Act,1986 has been filed by the Appellant/OP No.1 challenging the judgment and order No.26 dated 20/02/2015 passed by the Ld. District Forum, Unit I, Kolkata in Complaint Case No. C.C./328/2010 allowing the Appeal on contest as under:-

               “ the case is allowed on contest with cost against the o.ps. O.p. no.2 is directed to stop ECS in connection with the withdrawal of EMIs against the loan account no. 0331368387220 and to release the mortgage deed to the complainant. O.p. no.1 is directed to pay to the complainant the insurance claim amount of Rs.3,81,051/-(Rupees three lakhs eighty one thousand fifty one) only and o.p. nos. 1 and 2 are jointly and/or severally directed to pay to the complainant compensation of Rs. 40,000/-(Rupees forty thousand) only for harassment and mental agony and litigation cost of Rs.5000/-(Rupees five thousand) only within thirty days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.”

               The facts of the case, in a nutshell, are that the Respondent/Complainant along with his spouse, now deceased, took a home loan of Rs.4,00,000/-from Respondent/OP No.2 for purchasing a flat repayable in 180 EMIs at the rate of Rs.3,881/-. After ensuring payment of uninterrupted EMIs for 76 months, the Respondent/Complainant came to know from the Respondent/OP No.2 that the Respondent/OP No. 2 had, on and from April, 2009, tied up with  Appellant/OP No. 1 Company, who, accordingly, had conveyed to advise the Respondent/Complainant to get them insured under the policy sponsored by it as, what was informed, in that case the loan amount would be squared up in case of any mishap in addition to the insurance coverage to be provided under the policy.

               The staff of the Respondent/OP No.2 approached the spouse of the respondent/Complainant on 11/05/2009 with membership form of the policy sponsored by the Appellant/OP No.1 when the Respondent/Complainant provided the said staff with all relevant papers in respect of his spouse. The policy form, as the complaint revealed, was signed by the Respondent/Complainant without the policy forms being duly filled in.

                The policy having a period of coverage for 14 years with effect from 29/05/2009 to 24/05/2023 bearing Account No.000005 and Certificate No. 0000012827 of an initial sum assured of 3,81,051/- only against a premium of Rs. 40,223.70 only paid to the Respondent/OP No.2 out of the loan Account, was issued in the name of the Respondent/Complainant with his wife insured jointly with him.

                The spouse of the Respondent/Complainant died on 23/09/2009. The Respondent/Complainant submitted his claim for payment of compensation to Appellant/OP No.1 under claim No.CC 09000436

                The claim of the Respondent/Complainant was responded to by repudiation on 28/12/2009 on the ground of the deceased’s suffering from pre-existing diseases. The Appellant/OP No.1 sent to the Respondent/Complainant, along with the said repudiation of claim, a cheque amounting to Rs.11,360.20 only as refund of premium with an assurance of clarification in respect of any query to be communicated to him within 21 days from the receipt of the said letter of repudiation.

               The Respondent/Complainant sent a legal notice demanding payment as per claim within the given deadline of 21 days sending back the cheque mentioned above to the Appellant/OP No.1.

               There being no response to the aforesaid legal notice, the Respondent/Complainant filed the complaint case before the Ld. District Forum which was disposed of by the Ld. District Forum with the instant impugned order. The Appeal, which was filed by the Respondent/OP no.2 of the instant case against the same impugned order under Case no. A/1098/2015, was given an analogous hearing for the same being identical in nature and character for obvious reasons.

               Heard Ld. Advocates appearing on behalf of all sides.

               Ld. Advocate appearing on behalf of the Appellant/OP No.1 submitted that the claim repudiation was very much justified as the Respondent/Complainant hid the pre-existing diseases of his deceased spouse at the time of adopting the policy. As further submitted, the prescription available with the record would make it clear that the deceased spouse of the Respondent/Complainant was suffering from diabetes and also from hypertension.

               The suppression of the fact that the spouse of the Respondent/Complainant died of her pre existing diseases became more acute when the said spouse died within four months from the date of initiation of the policy. The Appellant/OP No.1 expressed his similar suspicion hinting at the Respondent/Complainant’s malafide intention in its written version at para 29.

               The Ld. Advocate, drawing the notice of the Bench at page 14, being the impugned order, submitted that the Ld. District Forum’s observation towards the insured being tested by the Appellant/OP No. 1 to ascertain the pre-existing disease  was based on a wrong stipulation, as there was no such mandate or dictum towards such testing and the entire policy was based on good faith between the parties involved.

               As submitted, there was nothing to hide by the Applicant/OP No.1, no malafide intention and therefore, no deficiency on its part which the Ld. District forum failed to appreciate. The Ld. District Forum, therefore, passed the impugned order with material irregularity which, as the Ld. Advocate contended, should be set aside allowing the instant Appeal to meet the ends of justice.

               In the above context, the Ld. Advocate cited the decision of the Hon’ble National Commission in Revision Petition N0. 2530 of 2014 reported in IV (2016) CPJ 342 (NC) [Bajaj Alliance Life Insurance Company and Anr-Vs.-Jaspal Kaur] wherein the Hon’ble National Commission observed that the deceased suppressed his pre-existing disease of chronic renal failure and this way, violated the policy condition and committed fraud with the insurer by making a wilful mis-representation as regards his state of health and treatment taken by him in the past justifying the cause of repudiation.

               The Ld. Advocate appearing on behalf of the Respondent/OP No.2, in his submission, repeated the entire incident and pointed out that the Ld. District Forum clubbed the two cases of different nature to arrive at a conclusive finding which was not permissible in the eye of law.

                As contended, the Ld. District Forum passed a non-speaking order for no cogent reason restraining the Respondent/ OP No. 2 from realizing the overdue loan amount.

               The Ld. Advocate continued to submit that the impugned order was cryptic and non-speaking one without appreciating the fact that the Respondent/OP No.2 had no authority to go beyond his ambit of defined activities. The impugned order was passed without appreciating the fact that the Respondent/OP No.2 would not be able to release the mortgage deed unless the loan with interest was fully realized.

                The Ld. Advocate concluded with the prayer for setting aside the impugned judgment and order and also allowing his Appeal in Case No. A/1098/2015 which was being given an analogous hearing.

               The Ld. Advocate appearing on behalf of the Respondent/complainant submitted that the Respondent/Complainant made repayment of 76 instalments out of the total 180 instalments fixed for the payment of the loan together with interest.

                The Ld. Advocate went on to submit that the Appellant/OP, in the instant complaint, repudiated the claim on the ground that the pre-existing diseases which led to death of the spouse of the Respondent/Complainant were suppressed which, as the Ld. Advocate continued, was not a fact, since the Respondent/Complainant had submitted the documents indicating therein the fact that his spouse was suffering from the said diseases. Had there been any intention to suppress the fact, the documents would not have been submitted by him at the time of initiating the policy.

               Secondly, as the Ld. Advocate maintained , the Appellant/OP No.1 along with his letter of repudiation, submitted a cheque of Rs. 11,353/- only of refund premium which was sent back by the Respondent/Complainant. It was not understandable, as maintained further, the reason for the said refund. Probably ,as submitted, it was an attempted camouflage by the Appellant/OP No.1 to misconvince the Bench about his company’s honest motive and also a misplaced submission in its futile effort to substantiate how careful the company was to safeguard the interest of its customers.

                The Ld. Advocate concluded saying that the Ld. District Forum had passed the impugned judgment and order on proper appreciation of the case. There was no reason to set aside the impugned order as submitted by the other sides. The impugned judgment and order should therefore be upheld.

               Perused the papers on record.

               The record revealed that there were prescriptions dated 18/03/2008, 25/03/2008 and 20/05/2008 in the name of the deceased where the patient was diagnosed and recorded as diabetic one. Since those prescriptions were made by the treating doctor much before 25/05/2009, the date of initiation of the policy, it became apparent that the deceased was having a pre-existing disease of Diabetes Mellitus

               The letter dated 28/12/2009 being the letter of the Appellant/OP No.1 addressed to the Respondent/Complainant, running page 71, further revealed that the Appellant/OP No.1 repudiated the claim because of the insured deceased wife of the Respondent/Complainant had a history of hypertension and Diabetes Mellitus. We, however, did not see any prescription with any indication as to deceased’s suffering from hypertension.

               The said deceased breathed her last on 23/09/2009, that is, within four months from the date of initiation of the policy. This caused genuine suspicion as to the deadliness of the disease that the patient was suffering from and the policy’s initiation with an ulterior motive of deriving an unlawful gain suppressing the material facts of the pre-existing disease.

               We had gone through the details of the patient at running page -95 wherefrom it came apparent that the deceased denied of her having any pre-existing diabetes which prima-facie appeared to be farthest from the truth.

               The insurance is nothing but a contract between the parties involved in good faith. The onus of any deviation from the contract devolves upon the deviator. Here, there was unwanted deviation on the part of the insured deceased through misrepresentation about her state of health by suppressing her pre-existing disease.

               Accordingly, in terms of the above observation and also being guided by the aforesaid observation of the Hon’ble National Commission referred to by the Ld. Advocate for the Appellant/OP No. 1, we are constrained to hold that the claim of the Respondent/Complainant lacked the merit to be entertained.

               Hence, ordered that the Appeal be and the same is allowed on contest. The impugned judgment and order stands set aside    and consequently, the complaint stands dismissed. No order as to costs.             

Instant order shall govern the appeal bearing No. A/1098/2015 which arose from the same impugned judgment and order involving the same issue.

               The LCR be returned immediately.