Dr. S.M. Kantikar, Presiding Member
1. The present Revision Petition is against the Order dated 03.04.2019 of the State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as the “State Commission”) in First Appeal No. A/18/605.
2. In the interest of justice, to provide fair opportunity to the Petitioner LIC, to decide the case on merit, the self-admitted delay of 15 days in filing the petition is condoned.
3. Briefly, the case of the Complainant is that the Petitioner LIC issued a policy under its ‘Jeevan Adhaar Plan– without profits - with accident benefits’ to the Complainant Anil Laxman Matade w.e.f. 25.07.1996 for sum assured Rs. 1,00,000/-. The half yearly premium was Rs. 2,257/-. The Complainant’s wife was the nominee. The policy was for the benefit / welfare of the Complainant’s daughter who was mentally challenged with congenital Down’s Syndrome. The Complainant paid all premiums regularly till the maturity of the policy on 25.01.2015. After the policy matured, the Complainant claimed the sum assured from the Petitioner LIC, but the Petitioner LIC refused. Further, as averred by the Complainant, he was surprised and taken aback to be told that 20% of the sum assured would be paid to his dependent mentally challenged girl-child only after his death and the remaining 80% would be paid to her over a further period of 15 years thence.
4. Being aggrieved by the refusal of the LIC to pay the sum assured, the Complainant filed a Complaint before the District Forum, Sangli alleging deficiency in service.
5. The LIC filed its written version and argued that the policy was for the benefit of only the dependant and would become effective only after the demise of the insured Complainant. The insured Complainant was not entitled for any payment during his lifetime. As per the terms and conditions of the policy only 20% of the sum assured was payable to the mentally challenged dependent daughter after the death of the insured Complainant and the remaining 80% was payable to her over the next 15 years.
6. The District Forum allowed the Complaint and directed the LIC to pay the sum assured, Rs. 1,00,000/- along with interest @ 9% per annum with effect from 25.01.2016 to the insured Complainant and also awarded Rs. 20,000/- as compensation and Rs.5,000/- as litigation cost.
7. The LIC preferred an Appeal before the State Commission. The Appeal was dismissed with cost of Rs. 5,000/-.
8. Both the fora below, the District Forum and the State Commission, have returned concurrent findings in favour of the Complainant.
9. We find the State Commission’s impugned Order to be well-appraised and well-reasoned. No jurisdictional error or legal principle ignored or miscarriage of justice is evident, as may require interference in the exercise of the revisional jurisdiction of this Commission.
10. We may but add that, admittedly, the Complainant had paid all premiums for 20 years without any default, the last premium was paid on 25.01.2015, after the period of 20 years was over, he did not receive the sum assured from the LIC despite several requests, he waited for one year and thereafter served a legal notice on the LIC on 26.06.2016, the LIC has not shown any logical application of mind to the peculiarities of this case, but has intransigently adhered to a mechanical straightjacketed application of its terms and conditions by rote.
11. From the record it is evident that the present age of the Complainant’s daughter is about 34 years, she is having 75% mental disability. No doubt the old parents have to struggle for the welfare and care of their Down’s - adult girl. They are also concerned for her safety from unforeseen sexual exploitation. She needs to undergo hysterectomy. The Complainant has this only girl, he has no relatives who can look after his such handicapped daughter.
12. The LIC has brought this product to the consumers under the clothing of uberrima fide. The name of the policy is very attractive “Jeevan Adhaar” i.e. “Life Support”, but, at times, this policy makes the consumer, in certain cases, as in the instant case, helpless, i.e. “Niradhar”, “life without support”- “crippled”. Thus, the insured is thrown in vacua..! after 20 years payment of all premiums.
13. The Act, 1986 is a benevolent social legislation as has been held by the Hon’ble Apex Court in a catena of judgements from time to time, and is aimed at providing for better protection of the interests of the consumers. Given the facts in the present case at hand, the interests of the consumer can be protected only if he is provided a remedy from all angles for the care of his Down’s adult girl. It is a fight between two unequal. The intention of LIC is not to pay a single penny till the death of insured, which makes the father helpless (the whole matter cannot even be understood by the mentally – challenged dependent daughter for whose benefit the father took the policy and paid premiums for 20 years). It is obvious that to secure the future of his daughter, the father, with good intention, took such policy, but he has been put to trouble and prejudice and made to struggle and face the intransigent arbitrariness of the LIC. The approach of the LIC in the instant case is contrary to the principle of uberrima fide.
14. To know about the agony & gravity of “Down’s syndrome and its social effects” we have gone through voluminous medical literature on the subject. Down’s syndrome is caused by triplicate chromosome 21 (Trisomy 21). The syndrome has a variable physical expression, sometimes it is associated with congenital cardiac defects, transient myelodysplasia (acute leukaemias) and duodenal atresia of the new-born. The care of the infant or young child with Down syndrome can be complicated and may involve a myriad of immediate and long-term medical problems, psychomotor and psychosexual development connected with mental retardation and endocrine disorders. Generalized tonic clonic seizures are the most common. IQs range from low normal to profoundly retarded.
15. When the parents first learn that their baby has Down syndrome, they may feel disappointment, grief, anger, frustration, fear, and anxiety about her future. The parents may react with shock, denial, anger, grief, fear, acceptance or any combination of these emotions. The Parents often have strong fears about the future of their child with Down’s disabilities. Dealing with the idea of someone else taking care of their child is never easy. As parents, their worry is that child will not be adequately prepared for the world. It is difficult for many to plan for such child. They face and realise their own mortality. There is a feeling always that no one will ever love, care for, and support their child. Thus the parents having Down’s daughter suffer agony and apathy throughout their life. Many parents think that if their child has money, he’ll be safe. Obviously, the financial resources, money, can help to make the child’s life more secure after the death of her parents.
16. Privacy is important. The sexuality is an intrinsic aspect of human development. Individuals with Down’s syndrome need individualized instruction and education to develop appropriate socio-sexual behaviours. They still require routine and preventive reproductive health services including urological care for men and gynaecological care for women. They also need education and counselling to prevent unplanned pregnancy, abuse, and sexually transmitted disease. The mentally disabled individual is particularly vulnerable to sexual abuse and maltreatment for several reasons: isolation; communication deficits; etc. Other contributing factors include multiple living situations and transient caregivers, some of whom may be paedophiles. [Pedophilia (alternatively spelt paedophilia) is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children]
17. The essential crux of the matter is that the Complainant took LIC’s Jeevan Adhaar policy for his daughter, who is mentally challenged with Down’s Syndrome. That all premiums were paid and that the policy had matured is not disputed. The only dispute is that the LIC is intransigent that the benefit will accrue to the beneficiary i.e. the daughter of the Complainant only after his death, as per the terms and conditions of the policy. The Complainant on the other hand, pointing out that his daughter is mentally challenged, wishes to immediately obtain the sum assured and to make adequate arrangements for his daughter in his lifetime, for her future (when he is no longer alive and there is no one else to make the requisite arrangements for his daughter).
18. We make it clear that we are not amending or adding to or subtracting from the general terms and conditions of the LIC’s subject Jeevan Adhaar policy. It is meant for the benefit of the handicapped dependents / nominees of the insured, the sum assured is to be paid to the handicapped dependents / nominees on the death of the insured. However, the policy and its terms and conditions cannot be implemented in an arbitrary and mechanical manner without application of mind and without having regard to the facts and specificities of a particular case. Making of adequate arrangements during his life time by the father of a mentally handicapped dependent (who would not be able to herself make arrangements or be able to agitate her case after the demise of her father) is nowhere precluded in the terms and conditions, that is to say, payment in such cases, in such facts and specificities, is nowhere precluded. The terms and conditions cannot be implemented in a straightjacketed mechanical arbitrary manner, with total disregard to the facts and specificities.
In this particular case, the handicapped dependent of the insured is an adult girl with Down’s Syndrome, she is not physically challenged, but is mentally challenged, and as such she cannot think and act for herself. The plight of a child and of her father and mother, and especially in the case of a girl-child having Down’s Syndrome, had to be understood and kept in view by the LIC with the due application of mind at the competent level (whichever it may be) while deciding the insured i.e. the girl-child’s father request that after the payment of all the premiums the sum assured may be immediately given so that he may make adequate arrangements for his mentally challenged daughter while he is still alive. The LIC failed to appreciate that a victim of Down’s Syndrome would be in no position to apply her brain and to act for herself so as to make appropriate arrangements for her well-being on her own, when her father is no more, and that she would be in no position to pursue her claim with the LIC, far less agitate it in the consumer protection fora / civil courts. The afore, which is the crux of the case, has been evaded and ignored by the LIC in its decision-making and in its litigation, both.
19. The intransigent, arbitrary, mechanical decision-making and the intransigent, protracted litigation, in an issue in which straightjacketed mechanical adoption of the terms and conditions by rote was deemed to be inviolable, and understanding the nature of the handicap, that it is mental (repeat mental) challenge caused by Down’s Syndrome, was kept in opacity, overlooked and ignored, is well and truly evident.
20. We have no hesitation in upholding the impugned Order dated 03.04.2019 of the State Commission and in affirming the award made therein. The award made by the
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State Commission shall, now, be complied with most immediately, without further delay. In addition, to compensate for the intransigent mechanical decision-making without application of mind and the intransigent protracted litigation by rote and the delay and trouble and prejudice caused to the Complainant and to his mentally challenged daughter, a cost of Rs. 2.50 lakh shall also be paid by the LIC to the Complainant, for the benefit / welfare of his mentally handicapped adult girl within four weeks of the pronouncement of this Order, without fail. The Chief Executive of the LIC shall ensure timely compliance. Further, the Chief Executive of the LIC is advised to inculcate systemic improvements in future for apt logical decision-making in such cases of congenital mental (repeat mental) disabilities in which the dependent cannot think and act for herself / himself. 21. Needless to add, in case of failure or omission in timely compliance, the District Forum shall undertake execution, for ‘enforcement’ under section 25(3) and for ‘penalties’ under section 27 of the Act 1986. 22. A copy each of this Order be sent by the Registry to the Complainant, the Chief Executive of the LIC, the State Commission and the District Forum within three days of its pronouncement.