Capt A K Singh vs NEW INDIA ASSURANCE CO LTD

THE purpose of Law is to prevent the strong always having their way. An insured, like a pilot, should be dealt with kid gloves, but in this case, he was made to take a dollop of injustice from the Insurance Company, who was in a position to call the shots.

CAPT . Anant Kumar Singh, the complainant was appointed in the Operations Department as Head of Operations with M/s. Jet Lite (India) Ltd. from 01.12.2007. Succinctly stated, he was a pilot. He used to obtain annual insurance policies from M/s. New India Assurance Co. Ltd., OP. The complainant applied for policy in the sum of Rs.1.00 crore and paid a sum of Rs.56,200/ -, vide cheque, as premium in favour of OP. This is an indisputable fact that the said cheque was encashed by the OP, as is apparent from the statement of account as on 30.04.2009, marked as Annexure P -1. Unfortunately, he was declared, ''permanently unfit'' for flying, vide report dated 22.12.2009 issued by Col. A.K.Upadhyay, AFCME, Subroto Park, New Delhi. The insurance company was apprised of this fact vide letter dated 11.03.2010.

THE insurance company sent the claim form to the complainant which was sent back to the OP on 13.05.2010. Several telephonic reminders and meetings with the OP could not ring the bell. Ultimately, the complainant sent a legal notice (Anx. P -2) dated 18.01.2011 to the OP. The OP vide letter dated 10.01.2011 repudiated the claim of the complainant with the allegation that he did not disclose the fact that he was a known case of Hypertension and chronic kidney disease. Copy of the said letter was placed on the record as Annexure P -3. The excuse put forward by the complainant is that the last two medical tests conducted by the Air Force, marked as Annexure P -4, clearly go to reveal that the complainant had met the prescribed medical standards. The insurance policy was issued after going through the said medical reports. It is explained that the said disease had occurred during the year 2009 as nothing was found detected in the medical examination of the year 2008 -09. Consequently, this complaint was filed with the following prayers : -

"i. since there is deficiency in service on the part of the respondent in not fulfilling their promise and rejecting the legal and legitimate claim of the complainant on the illegal and unsustainable ground, hence they be directed to pay the insurance amount of Rupees One crore along with interest @ 18% on the delayed payment from the date of the claim.

ii. that the respondents be directed to pay the compensation for mental agony, harassment and legal expenses to the tune of Rs.5,00,000/ -.

iii. any other relief/s deemed fit and proper by this Hon''ble Commission under the facts and circumstances of the case, may kindly be granted to the complainants".

ACCORDING to the OP, the policy of the complainant in the sum of Rs.50,00,000/ - was sanctioned. The policy was sent to the complainant and he has never raised any protest. The complainant had no grievance regarding deduction of the amount from Rs.1.00 crore to Rs.50.00 lakhs, consequently, the pecuniary jurisdiction of this Commission has also been called into question. The complainant has concealed the fact that he was suffering from pre -existing disease and secondly, he did not disclose that he was having policy with Oriental Insurance Co. Ltd., as well. The complainant did not disclose how much amount he has received from the Oriental Insurance Co. Ltd. and also from any other insurance company or its employer. As a matter of fact, the complainant was grounded from 22.01.2009 to 22.02.2009 due to low Haemoglobin for a period of 30 days. The complainant has been on non -steroidal anti -inflammatory drugs which has caused renal failure and which has been diagnosed as chronic kidney disease (analgesic nephropathy). All the information was kept under the hat. The time for taking the above said drugs was also withheld. The complaint is bad for non -joinder of Oriental Insurance Co. Ltd.

WE have heard the learned counsel for the parties and perused the written synopsis filed by the complainant. The first question which falls for consideration is, "for how much amount the insurance policy was obtained -. The complainant has placed on record the statement of account issued by ICICI Bank. It reveals that the OP New India Assurance Co. Ltd., got encashed the cheque in the sum of Rs.56,200/ - sent by Sh. Anant Kumar Singh, the complainant. However, the insurance policy issued for the period 08.04.2009 to 07.04.2010 reveals that it was for an amount of Rs.50,00,000/ -. This insurance policy was filed by none else than the complainant himself.

THE complainant himself was aware of the fact that the said policy was in respect of Rs.50,00,000/ - only. However, there is another letter, dated 19.06.2009 which shows that "consequently, the revised sum insured shall be read as Rs.50,00,000/ -". The next line reads "in consequence whereof, a sum of Rs.27,575/ - is hereby refunded to the insured towards the reduction in the sum insured". The complainant has submitted time and again that he has never received the above said sum of Rs.27,575/ -. The OP has failed to show that the said amount was paid to the complainant on the face of denial made by the complainant. The bizarre conduct of both the parties is difficult to fathom. The OP has still withheld the sum of Rs.27,575/ - which shows deficiency on their part. It smacks of a malafide intention on the part of the OP. By no stretch of imagination, the OP can be said to be a guileless person. It has taken undue advantage of having an upper hand. The OP did not produce even an iota of evidence that the said amount was refunded and piled on the agony of the insured, when its counsel at the Bar, denied having knowledge about the same.

ON the other hand, the complainant, keeping this insurance policy for 2 -3 years, was well aware of the fact that the insurance policy was up to Rs.50,00,000/ -, yet, he was advised wrongfully to file a case before this Commission. It should have been filed before the State Commission. However, since enough time has elapsed and we do not feel it proper to transfer the same to the State Commission, therefore, we have made up our mind to decide the case, ourselves. At the best, the complainant can claim Rs.50,00,000/ - + Rs.27,575/ - which comes within the jurisdiction of the State Commission. Consequently, the first deficiency on the part of the OP stands proved. Even if it is assumed, that the complaint was filed rightly in the National Commission, yet, we do not consider that the policy should be treated in the sum of Rupees One Crore, though, there is considerable delay and second deficiency on the part of the OP.

SECONDLY , it appears that the OP has pursued this case in a very clumsy way. They did not care to produce the policy upon which heavy reliance has been placed on the record, till eleventh hour. It was at the time of final arguments that, when we asked the counsel for the OP, as to where was the policy upon which he was placing heavy reliance, it was found to be kept in his file. The Commission itself got prepared its photocopies immediately and furnished the same to the counsel for the complainant, as well.

THE complainant or his counsel cannot be taken by surprise at the fag end of this case. He was given not given time to rebut the same and go through the same, particularly, when he submits that that policy was never furnished to the complainant and the Exclusion Clauses were never disclosed to him. It is difficult to understand, why, did the insurance company keep this document of infinite importance under the wraps.

NOW , let us turn to the insurance policy. Its condition Nos. 1 and 2 are germane to the present controversy. First of all, we turn to condition No.1 which runs as follows : - "(1) Any fraud or any concealment of or failure to disclose or misstatement of a material fact in the making of a claim hereunder shall render this policy null and void and all rights to make a claim thereunder shall be forfeited".

OP did not produce any mis -statement made by the complainant. The proposal form furnished previously or subsequently, did not see the light of the day. Counsel for the complainant has placed reliance on the following Discharge Summary report. Its history runs as follows : "HISTORY: - Mr. A.K. Singh, 54 years old male known case of HTN, CKD, gout on NSAID and Tab Losartan presented with complain of swelling of both legs, pain in joints, generalised weakness and shortness of breath. Now he is admitted for further evaluation and managed".

IT reveals that the date of admission is 16.06.2009 and the date of discharge is 24.06.2009. There is not even an iota of evidence which may go to show that the complainant was aware of all these diseases at the time of furnishing of proposal form or at the time of its renewal. The complainant explained in para No.16 of his rejoinder, as under : - "xxxxxx As regards non -disclosure of temporary grounding, it is submitted that since flying norms do not permit even a smallest medical disorder, hence when the haemoglobin of the complainant was slightly less he was advised rest, but that is not a serious ailment/pre -existing disease as thereafter the medical board granted fitness certificate and the complainant was duly performing his duties. It is just like a person getting minor ailments and thereafter he is declared fit and the complainant was actually not aware that he had to declare as to how many times he had fever, cold, cough, or similar small ailments in life. He was made to understand that he had to furnish the medical fitness certificate, which was duly furnished by the complainant to the respondent".

THE OP deals in various sorts of insurance, including aviation insurance and one of them is ''Loss of Licence insurance''. The purpose of this insurance as per the OP''s own declaration on website is "operating crews of the aircraft are required to have valid licence, licence is liable to be suspended either temporarily or permanently, on medical grounds''. Consequential financial loss is covered by the loss of licence policy. The cover is provided in respect of incapacity causing permanent total disablement or temporary total disablement due to bodily injury or illness.

ACCORDING to the complainant, the terms thereof, were never communicated to the complainant, nor it is a part of the insurance policy that they provided to the complainant and also that it has not been filed before this Commission along with written version duly supported with an affidavit. The complainant has placed reliance on Modern Insulators Vs. Oriental Insurance Co. Ltd., 2000 2 SCC 734, wherein it was held that duty of parties is to disclose the fact in their knowledge. Exclusion Clause was neither disclosed by the insurer nor made part of the insurance contract. It was further held that in absence of communication of the Exclusion Clause to the insured, the insurer could not claim the benefit of that clause. It was further held that it is the fundamental principle of insurance law that, utmost good faith must be observed by the contracting parties and good faith forbids either party from non -disclosure of the facts which the parties know. The insurer has a duty to disclose and similarly, it is the duty of the insurance company and its agents to disclose the material facts in their knowledge since the obligation of ''good faith'' applies to both, equally.

IT was also apparent that, at the time of renewal of the licence, the complainant had undergone assessment through Medical Board constituted by Air Force Central Medical Establishment and on 26.02.2009, it was certified that the complainant met the specified medical standards. The said disease was detected only in June, 2009. There is not even an iota of evidence which may go to show that the complainant suffered from this ailment, prior to April, 2009. The complainant has placed reliance on New India Assurance Co. Ltd. Vs. Priya Blue Industries (P.) Ltd., 2011 4 SCC 231.

NOW , we turn to the second ground. Condition No.2 runs as follows : - "Notwithstanding anything to the contrary contained in this policy, no liability shall attach to the company to the extent to wish the insured and insured person is also entitled to benefit under any other policy of insurance insuring the insured person against any of the risks hereby insured (other than any personal accident insurance), unless written notice of the existence of that policy shall have given to the company and the company''s acquiescence has been noticed by endorsements hereon".

The case of the complainant is that when he was declared ''unfit'', he did not receive any payment from his employer. Consequently, he filed RTI application at several places and in that process, the Oriental Insurance Co. Ltd., gave a reply dated 24.04.2011 which was placed on the record. It is apparent that M/s. Jet Lite (I) Ltd., had taken a Group Insurance Policy which was valid from 01.07.2008 to 30.06.2009 and the name of the complainant was in the list of employees. It further shows that on that date, the complainant was permanently grounded and when the Plan was raised, there was no other policy, availed by the complainant except the one taken by him through the OP.

IT must be borne in mind that it was a Group Insurance Policy. The complainant did not apply for it personally or in his name. Consequently, this ground, too, is not proved in favour of the OP.

THE whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and direct the insurance company to pay a sum of Rs.50,00,000/ - in favour of the complainant, with interest @ 9% p.a., from the date of filing of complaint, i.e. 23.02.2011, till its realisation. The OP is further directed to pay the sum of Rs.27,575/ -, w.e.f. 19.06.2009, with interest @ 18% p.a., till its realisation.