At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE N. NAGARESH
For the Petitioner: Sri. Jagan Abraham M. George, Jaison Antony, M. Semeer, Advocates. For the Respondents: R1 & R2, R. Harishankar, Advocates.
The petitioner, husband of deceased Jasmine Joshi, is before this Court seeking to set aside Ext.P3 repudiation letter and Ext.P5 Award and to direct the respondents to pay the sum assured in Ext.P1 policy and settle the claim of the life assured to the legal heirs including the petitioner.
2. The petitioner states that he is husband of diseased Jasmine Joshi and the father of Aleena Joshi and Ashik Andrew Joshi, who are students. His wife Jasmine Joshi passed away on 11.08.2014 at Jubilee Mission Medical College Hospital, Thrissur due to cardiac arrest at a young age of 42 years.
3. Late Jasmine Joshi had taken a Life Insurance Policy 'Jeevan Tarang', of the 1st respondent. The policy was taken on 28.10.2013 for the sum assured Rs.9,95,000/-. The policy was taken after due medical checkup. The medical checkup was conducted at the instance of respondents 1 and 2 at the Sun Medical Centre, Multi Speciality Centre, Thrissur.
4. Late Jasmine Joshi had to undergo a bariatric surgery on 12.07.2014 at NIMS Hospital, Trivandrum. The surgery was successful and petitioner’s wife returned back to her home at Thrissur. On 06.08.2014, she developed a heart pain and was admitted to Jubilee Mission Medical College Hospital, Thrissur. While undergoing treatment, Jasmine Joshi died suddenly on 11.08.2014 due to cardiac arrest.
5. The petitioner approached the respondents to settle Ext. P1 Insurance Policy. By Ext.P3 letter dated 28.03.2015, the respondents repudiated the claim. The respondents alleged that the petitioner and the life assured suppressed material facts while taking the policy. Aggrieved by the stand of the respondents, the petitioner approached Insurance Ombudsman, Kochi.
6. The Ombudsman as per Ext.P5 Award dated 11.02.2019, dismissed the complaint. In Ext. P5, it was stated that the life assured was overweight and the said abnormality was not disclosed at the time of taking the policy. It was further stated that another policy was taken by the deceased paying extra premium and this fact was also not disclosed while taking Ext.P1 policy. It was for these reasons that the claim based on Ext.P1 policy was rejected. The rejection of the claim is highly arbitrary and illegal, contended the learned counsel for the petitioner.
7. Respondents 1 and 2 filed a counter affidavit. Respondents 1 and 2 stated that in Ext.P3 proposal, the life assured gave incorrect information regarding her health. The deceased was admitted to Jubilee Mission Hospital following a bariatric surgery for weight reduction. The discharge summary dated 14.07.2014 given by Neyyattinkara Institute of Medical Sciences (NIMS) shows diagnosis as Morbid Obesity (Class III), Body Mass Index (BMI) as 43.82 (Weight 108 Kg., Height 157 cm.).
8. In the proposal based on which Ext.P1 was issued, the weight of the deceased was shown as 67 Kg. This would indicate that the individual gained 41 Kg. weight within a period of eight months and 14 days which is not possible. Therefore it has to be assumed that the weight reported at the time of taking Ext.P1 policy was incorrect.
9. The learned counsel for the respondents pointed out that for sum assured beyond Rs.10 lakhs, special medical reports would have been called for, for assessing the risk of the life assured. Such detailed medical checkups were avoided by the deceased by proposing insurance of Rs.9,95,000/-.
10. The learned Standing Counsel appearing for respondents 1 and 2 argued that every policy is a separate contract, the insurability of the proponent depends on a number of factors and life assured failed to disclose true facts. The contract of insurance is therefore invalid due to concealment of vital information by the life assured.
11. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 1 and 2.
12. It is evident that the respondents have issued Ext.P1 policy on the basis of medical reports made available to them. If the medical reports given after examination of the deceased revealed that the petitioner's weight was 67 Kg. at the time of making proposal for Ext.P1 policy, there is no reason to disbelieve the said fact. The respondents have no case that the deceased herself deliberately gave wrong information to the respondents.
13. The reason adopted by the respondents to repudiate the policy is that in the medical records of Neyyattinkara Institute of Medical Sciences (NIMS) showed that the weight of the petitioner as 108 Kg. It is on the basis of this discrepancy that respondents 1 and 2 repudiated the claim of the petitioner. If the medical records/documents issued by two different medical institutions show difference in the weight of the deceased, that by itself will not be sufficient to assume that the petitioner has played fraud or gave an incorrect information. Furthermore, it is possible that the report of the institution which recorded the petitioner's weight as 108 Kg., is erroneous. Therefore, the respondents would be doing injustice to the deceased and the family by denying insurance claim on the basis of conflicting medical records.
14. The further reason extended by the respondents to deny the claim amount is that the petitioner has suppressed payment of extra premium made for obtaining another policy earlier. In this regard, it is to be noted that there is no material to assume that the deceased had knowledge of payment of extra premium for the earlier policy and the deceased had deliberately suppressed the said fact while making a proposal for Ext.P1 policy.
15. The deceased was holding six insurance policies at the time of her demise. Respondents 1 and 2 have settled the remaining five policies. There is no allegation in respect of those policies that
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those were obtained suppressing facts. In respect of the 6th policy the validity of which is in dispute in this writ petition, there is nothing on record to show that the deceased had deliberately suppressed material facts or given information with malafide intention. Therefore, the respondents are not justified in repudiating the policy. 16. In the circumstances, Exts.P3 and P5 impugned in the writ petition, are set aside. There will be a consequential direction to respondents 1 and 2 to pay sum assured in Ext.P1 policy to the legal heirs of the deceased Jasmine Joshi forthwith. Writ petition is allowed as above.