w w w . L a w y e r S e r v i c e s . i n

Laxmibai, Through Her L.Rs. & Others v/s Birla Sun Life Insurance Co. Ltd.

Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

    Revision Petition No. 497 of 2013

    Decided On, 12 April 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Petitioners: Shashi Bhushan Adgaonkar, Advocate. For the Respondent: Neelsh Sinha, Alongwtih Rashi Gupta, Advocates.

Judgment Text

Ajit Bharihoke, Presiding Member

1. Husband of the petitioner, namely, Vishnu Das Sharma, purchased a life insurance policy from the opposite party insurance company. The insurance was effective with effect from March, 2003. During the currency of the insurance policy husband of the petitioner/complainant died on 27.4.2004. The petitioner, being widow of the late insured submitted, a life insurance claim. The respondent insurance company, however, repudiated the claim of two counts, namely, the deceased Vishnu Das Sharma had obtained the insurance policy by concealment of material facts and he also concealed that prior to taking of the subject insurance policy the deceased already had two policies with life insurance corporation. Being aggrieved of the repudiation of the claim the petitioner raised a consumer dispute by filing a consumer complaint in District Consumer Disputes Redressal Forum, Nanded.

2. The respondent/opposite party, on being served with the notice of the complaint, justified the repudiation of the claim on the plea that in the insurance proposal form the late insured had concealed the information that while applying for the insurance policy the deceased was already having two other insurance policies and he also concealed the material facts regarding his previous medical condition and as such the repudiation of the insurance claim is justified.

3. The District Forum on consideration of pleading and the evidence produced by the parties allowed the complaint and directed the respondent opposite party as under: -

'The application of the applicant is allowed.

The respondent shall pay the amount of Rs.15,00,000/- (Rs. Fifteen lacs only) on the insurance policy no.0000 81371 alongwith an interest @ 6% p.a. from 12.7.2006 till the realization of the amount within 30 days from the date of receipt of the order.

The 1,000/- shall be given to the complainant as costs.'

4. Being aggrieved of the order of the District Forum the respondent insurance company preferred an appeal. The State Commission on consideration of record was of the view that the insured was suffering from chronic renal problem from the year 2001 and he had concealed this fact from the opposite party while obtaining the insurance policy and in view of the aforesaid the State Commission allowed the appeal, set aside the impugned order and dismissed the complaint. Being aggrieved of the order of the State Commission the petitioner has filed the revision petition.

5. Learned counsel for the petitioner has contended that the impugned order holding that the insured obtained the insurance policy by concealing material facts regarding his previous ailment is not sustainable because State Commission has failed to appreciate that by not answering the questions pertaining to his medical condition in the section of the proposal form containing the questionnaire in this regard, the insured has not done any concealment because the section itself provide that the questions may not be answered if the insured was required to be medically examined before the acceptance of the insurance proposal. It is argued that the record would show that before accepting the insurance policy medical examination of the insured was got done through Dr. Govind Bhattad of Radhe Govind Hospital, Shivaji Nagar, Nanded whose affidavit was placed on the record of the District Forum besides his letter dated 15.9.2004 addressed to the Chief Medical Officer of the insurance company. It is argued by learned counsel for the petitioner that if the answers in the medical section were not given then the underwriter should not have accepted the proposal and accepted the insurance premium. Once the insurance proposal has been underwritten now the insurance company cannot take shelter of the fact that the insured did not disclose about his previous renal problem in the proposal form.

6. We do not find merit in the above contention.

7. On perusal of proposal form submitted by the deceased insured for purchasing the insurance policy, we find that there is a section seeking medical information with following questions:

'MEDICAL INFORMATION ( If medical examination of the Life to be insured is to be submitted, please leave this section blank)

1. Are you on diet or any other medicine of any kind prescribed by a doctor?

2. Within the past five years, have you:

a. Consulted any doctor or other health practitioner except for common cold, influenza lasting less than 4 days?

b. Submitted to ECG, X-rays, blood test or other tests?

c. Attended or been admitted/advised to be admitted to any hospital or other medical facility?

3. Do you ever had or sought advice for the following:

a. Chest pain, high blood pressure, stroke, heart attack, heart murmur or other heart disorders?

b. Asthma, chronic cough, pneumonia, shortness of breath, T.B. or any other respiratory or lung disorders?

( If YES, complete the appropriate questionnaire)

c. 'Diabetes or sugar in the urine ( If 'YES', complete the appropriate questionnaire)

d. Protein ( Albumin), blood or pus in the urine, sexually transmitted diseases or venereal disease?

e. 'Ulcer, colltis, chronic diarrhoea, hepatitis or jaundice or other liver or digestive disorders ( If 'YES', complete the appropriate questionnaire)

f. Cancer, tumor, thyroid disorder, enlarged glands or enlarged lymph nodes?

g. Anemia, bleeding or blood disorders?

h. Dizzy/fainting spells, epilepsy, paralysis, nervous or mental/emotional disorders? (( If 'YES', complete the appropriate questionnaire)

i. Urine, kidney, bladder, reproductive organ or prostrate disorders?

j. Arthritis, gout or joint pain, muscle, bone fracture or disorders?

k. Acquired Immune Deficiency Syndrome (AIDS) or AIDS related complex?

l. A test indicating the presence of HIV (AIDS Virus)?

m. Any other illness, surgery or injury

4. Do you have any bodily deformities ( If YES, state nature and extent of deformity)'

5. Do you have any health symptom or complaints for which a physician has not been consulted or treatment received?

Eg. Persistent fever, unexplained weight loss, loss of appetite, pain, swelling etc.

6. For female lives:

a. Are you pregnant? If Yes, number of weeks

b. Have you had, or do you have, any complications of pregnancy?

c .Have you had, or do you have, any Gynaecological problem?

8. Undisputedly, the insured had left all the questions in the aforesaid questionnaire unanswered. For this, he cannot be blamed for the reason that proposal form itself provides that in case where the insured is to be medically examined before the issue of insurance policy, the insured may leave the section blank. It is not disputed that this is a case of medical examination before the acceptance of the proposal. As per record, the insured was medically examined, before the acceptance of proposal, by Dr. Govind Bhattad. Ex. ‘E’ in the District Forum’s record is the letter of Dr. Govind Bhattad dated 15.09.2004 addressed to Dr. S.G.Karmarkar to Chief Medical Officer of the respondent insurance company. The letter reads as under:

Dear Sir,

With reference to your letter dated 26th August 2004, I am submitted my clarification as :

I have examined Mr. Vishnudas Shankarlal Sharma, at my clinic on 27.03.2003 at 10.00 am. Mr K.H. Darak, BSLI adviser No.1086 was accompanied with client Mr. V.S.Sharma.

Complete detail history was taken by me and recorded by me in front of Mr. K H Darak. Client was apparently healthy, dynamic personality, came by driving two wheeler by himself.

On clinical examination his height, weight, chest expansion were normal. I have notified following abnormalities on any clinical examination.

Blood pressure was high i.e. 150/100 mm. Hg.

Pulse was 60/mt. regular

In Q-O of Part-II FMR, I have mentioned unusual features like mild systemic hypertension

In BSL-13 exam, his serum creatinine was on higher side i.e. 1.34 mgl.

I have also mentioned in his ECG examination of mild left ventricular hypertrophy. I was surprised after receiving your letter. I think he had not given proper history and hidden the fact of having systemic hypertension and he might be taking anti-hypertensive drugs and diuretics.

After detail enquiry, I came to know that there are many allegations on him by income tax department and other insurance companies also.

I can only conclude that he was lying during history, not given by me any history of disease and medicines whatever he was taking. He must have come to me after taking conservative medicines, so that his clinical parameter came to normal and other thing, that chronic renal failure can occur over period of weeks e.g. in a condition called Rapidly Progressive glomerulopathies, severe renal insufficiency can occur in few weeks due to crecentric glomerulopathies.

9. On reading of the above, it is clear that Dr. Govind Bhattad has categorically stated that insured had lied to him while giving his past medical history and concealed about his previous ailment which is apparent from the copy of the letter dated 16.02.2004 written by the insured V S Sharma to the Income Tax Officer. In the said letter, insured has recorded thus:

Since last three years due to my ill health, I have not filed my Income Tax Returns for the period 2001-2002 as per Income Tax Act. As I am since long time confinement to bed and not able to collect documents as well as I am unable to prepare my computation of Income to submit Income Tax Return.

I am facing very serious health problem and I have to visit frequently to Higher Center i.e. at Hyderabad, Pune and Bombay, for further investigation and medical treatment. As per opinion of doctor’s of Higher Center my both kidneys are not in order and in their opinion further time is enquired to replantation of kidneys. On my ill health I am spent huge amount I am the only working person in my family and my children are minor, they have not knowledge of Income Tax and accounting procedure.

10. On reading of the above, it is clear that three years prior to 16.02.2004, the insured was suffering from ill health and he was confined to bed, as a consequence of which he could not file his Income Tax return for the year 2001-02. It is further mentioned in this letter that as per opinion of the doctors, both his kidneys were not in order. Proposal form was signed by the insured on 15.03.2003, meaning thereby that insured was suffering from problem of both the kidneys since much prior to the filing of the proposal form. This fact was not disclosed by the insured to the Dr. Govind Bhattad, who medically examined him in the context of the proposal form. Thus, in our view the State Commission has rightly observed that this is a case of concealment of material fact.

11. It is pertinent to mention that earlier to purchase of subject insurance policy, the insured had two insurance policies, one for Rs.3.00 lacs and other for Rs.2.00 lacs with Life Insurance Corporation of India. On perusal of proposal form, we find that proposal form contains the column for seeking details in which proposer is supposed to give details of his application for issue of previous policy, year of issue and the face value of the earlier insurance policy. The said column has been left blank by the proposer, meaning thereby that the insured concealed existence of previous two insurance policies from the respondent. It may not be out of place of mention that earlier two insurance policies were for Rs.2.00 lacs and Rs.3.00 lacs whereas in March 2003, the petitioner applied for insurance policy of much larger amount of Rs.15.00 lacs and he died within a year from the date of issue of subject insurance policy. From the facts

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and circumstances discussed above, it appears that petitioner having known his adverse medical condition with a view to secure his family members deliberately purchased the subject insurance policy by misleading the insurer and concealing the material fact. 12. It is well settled that contract of insurance is based on the doctrine of ‘uberrima fides’ i.e. utmost good faith. The life assured while obtaining the insurance policy is under obligation to disclose relevant material aspect with respect to his / her life. Reference be made to the judgment of the Supreme Court in the cases of P.C. Chacko & Anr. Vs. Chairman, LIC of India (2008) 1 SCC 321, Satwant Kaur Sandhu Vs. New India Assurance Company (2009) 8 SCC 316 and judgment of this Commission in the matter of Crown Consultants Pvt. Ltd. Vs. Oriental Insurance Company Ltd. III (2011) CPJ 439 (NC). 13. In view of the law laid down in above noted judgments and the fact that insured had obtained insurance policy by concealment of material facts, we do not find any fault with the order of the State Commission setting aside the order of the District Forum. The petitioner has not been able to show any material irregularity or jurisdiction error which may call for interference in exercise of revisional jurisdiction. Revision Petition is, therefore, dismissed.