Ajit Bharihoke, Presiding Member
This revision is directed against the order of the State Consumer Disputes Redressal Commission Haryana ( in short, the State Commission) dated 30.11.2012 in FA No. 1047/2012 whereby the State Commission Haryana allowed the appeal against the order of the District Forum Sonepat and dismissed the complaint.
2. Briefly stated facts relevant for the disposal of this revision petition are that husband of the petitioner obtained life insurance policy of Rs.1,00,000/- from the opposite party on 28.04.2004. Rajinder Singh, husband of the petitioner died on 07.11.2004. The insurance claim was filed in February 2010 on the plea that it could not be filed earlier because the petitioner had no knowledge of the insurance policy. The opposite party repudiated the claim. Claiming this to be deficiency in service, the petitioner filed the consumer complaint.
3. The respondent opposite party in his written statement justified the repudiation of claim on three counts, firstly, that the complaint was barred by limitation as it was filed seven years after the date of death of the insured, secondly the insured had failed to pay the second instalment of the insurance premium which became due prior to the death of insured on 28.10.2004 and thirdly on the ground that the insurance policy was obtained by the insured by concealment of material fact regarding his having been operated upon for removal of gall bladder in December 2003.
4. Learned District Forum on consideration of material on record and the evidence adduced by the parties allowed the complaint and granted relief to the petitioner as under:
œThe complainant is only entitled to the claim amount of rupees one lac and the request for the complainant for the grant of interest and compensation stands rejected since the deceased LA had expired on 07.11.2004 and as per the complainant herself, the fact of insurance policy in the name of deceased Rajinder Singh had come into her knowledge in Feb 2010. Accordingly, it is directed to the respondent to make the payment of Rs. One Lac only to the complainant.
With these observations, findings and directions, the present complaint stands accepted partly.?
5. Being aggrieved of the order of the District Forum, the respondent opposite party preferred an appeal. The State Commission on hearing the parties and perusal of record, allowed the appeal and dismissed the complaint. Relevant observations of the State Commission are reproduced thus:
œIt is not disputed that husband of the complainant had obtained insurance policy for Rs.one lac on 28.04.2004. It is also not disputed that life assured had died on 07.11.2004 and intimation was given to the OP on 12.03.2010. It is also not disputed that husband of the complainant died on 07.11.2004 whereas the complaint was filed by the complainant before the District Forum on 14.10.2011 i.e. after about six years and thus the complaint was not maintainable as time prescribed under Section 24A of the Consumer Protection Act, 1986 according to which complaint was to be filed was within two years from the date of cause of action.
Reference may be made to case law cited as V.N.Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (supreme court) CP) wherein the Honble Supreme Court has held that:
24-A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of the cause of action. In other words, the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24-A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24-A(2), the Consumer Forums will have no option but to dismiss the same.
The present case is fully covered by V.N.Shrikhande (Dr.) Versus Anita Sena Fernandes (supra) and as such the complaint filed by the complainant deserved to be dismissed.
It is admitted case of parties that life assured obtained insurance policy from the OP. The allegation of OP-appellant was that life assured was suffering from pre-existing disease and did not disclose this fact while taking out the policy. The claim was repudiated on the ground that the life assured was suffering from pre-existing disease which he had not disclosed at the time of proposal and thus the life assured has concealed material particular about his health, thus the claim was rightly repudiated.
Thus, it has not been disputed that the life assured took put policy and death occurred on 11.10.1996. The life assured did not disclose the above said facts while taking out the policy. The perusal of proposal form shows life assured had not disclosed about his operation of gall bladder in the proposal form.
While dealing with the contention raised on behalf of the appellant, we have to follow the observation made by the Honble National Commission in case cited as Kokilaben Narendrabhai Patel Vs. Life Insurance Corporation of India 2010 CTJ 920 (CP) (NCDRC), which are reproduced under:-
œInsurance-Deficiency in service “ Consumer Protection Act, 1986 Section 2(I) (g)-Section 2(I) (o)-Insured died due to heart attack-His wife nominated to receive the insured amount in the event of his premature death-Repudiation of her claim-Allegedly correct answers not given by the deceased regarding his health in the proposal form-Complaint by his wife allowed by the District Forum-State Commission accepted the appeal and set aside the order passed by the Forum-Hence, the present revision petition-Admittedly the insured suffered from Enteric fever eleven months prior to the taking of the policy-Further, for getting it treated, he even took leave for seventeen days-These two facts not disclosed by him in the proposal form-Non-disclosure thereof was clearly a material fact having a bearing on the risk involved-Repudiation of the claim fully justified-View taken by the State Commission upheld-Revision Dismissed.?
Another observation made by Honble Supreme Court in case titled Satwant Kaur Sandhu Vs. New India Assurance Company Limited (2009) 8 SCC 316, holding as under:-
œWhen information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer.?
It has further been held that a mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information.?
In para 29, the Honble Supreme Court has observed as under:-
œJudged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated.?
The case law cited (supra) above is fully applicable in this case.
The District Forum passed the impugned order by ignoring all these aspects and as such the impugned order being an illegal one cannot be sustained.?
6. Learned counsel for the petitioner Mr.P.S.Goindi, Advocate has contended that the impugned order of the State Commission is based upon incorrect appreciation of facts and law. It is argued that the State Commission has committed a grave error in coming to the conclusion that the insured obtained the insurance policy by concealing the material fact regarding his earlier surgery from the respondent. Expanding on the argument, learned counsel submitted that the State Commission failed to appreciate that the signatures of the insured were obtained by the agent of the insurance company on the blank proposal form which was filled in later. Therefore, the insured cannot be held guilty of suppression of concealment of material facts and as such the judgments referred to in the order of the State Commission are not applicable to the facts of the case. It is further contended that State Commission has committed a grave error in holding that the complaint is barred by limitation ignoring the fact that the petitioner was not even aware of the insurance policy of her husband and as soon as she came to know about the insurance policy in February 2010, she filed a consumer complaint.
7. Learned Shri U.C.Mittal, Advocate for the respondent on the contrary has argued in support of the impugned order and prays for dismissal of revision petition. 8. On perusal of record, we do not find merit in the contention of the petitioner. On perusal of the copy of the proposal form submitted by the insured Rajinder Singh for obtaining insurance, we find that there is a questionnaire about the previous history of the insured in coloumn no.11. The insured was required to furnish information as to whether the insured had ever been admitted to the hospital / nursing home for general check-up, observation, treatment or operation. The insured in response to the aforesaid question has answered in the negative. The proposal form is dated 28.04.2004. As per the œMedical Attendants Certificate? issued by Dr. O.P.Pathania, Professor of Surgery, Department of Surgery LHMC and Hospital who last attended the insured, the insured had been suffering from œCholecystectomy? for the last 1 ½ year prior to the date of his death and he has undergone surgery for removal of gall bladder at Sunder Lal Jain Hospital in December 2003. Relevant portion of the aforesaid certificate is reproduced thus:
| a. What was the exact cause of death?(Besides defing the disease or other cause of death in such terms as you consider appropriate kindly add the distinctive technical name). |
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| b. Was it ascertained by examination after death or inferred from symptoms and appearance during life |
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| c. How long had he been suffering from this disease before his death |
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| d. What were the symptoms of the illness |
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| e. When were they first observed by the deceased. | |
| f. What was the date on which you were first consulted during the illness |
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| g. Did you attend him during the whole of its course. If not, state during what period? |
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9. In view of the observation above, we find that the impugned order of the State Commission is based upon the settled law. Therefore, we find no reason to interfere with the order in exercise of revisional jurisdiction. Revision petition, is therefore, dismissed.