HARISH JAMNADAS MANDVIA vs Life Insurance Corporation of India

THE complainant is a consulting surgeon practising at Ahmedabad. His wife. Dr. Dinaz Mandavia (deceased for short) was also a general surgeon and Associate Professor of Surgery at B.J. Medical College and Civil Hospital at Ahmedabad. THE complainant and the deceased made proposal to the opponent Life Insurance Corporation of India (Corporation for short) for policy known as "Jeevan Sathi" policy (Double cover joint life plan) on March 31,1990. THE doctor of the Corporation medically examined the complainant and the deceased on April 1,1990. THE complainant and the deceased paid half-yearly premium to the Corporation and policy No. 830592930 was issued in their favour by the Corporation on October 8,1990. THE sum, assured was Rs. 2 lakhs and it was payable on the date of maturity i.e. March 28,2010 or the date of death of either of the assured.

ACCORDING to the complainant, the deceased had pain in abdomen and vomiting on April, 1990, about five days after the proposal was made to the Corporation. Dr. N.L. Patel, Consultant Radiologist did barium meal investigation/study and suspected that the deceased was suffering from malignancy in stomach on account of narrowing and irregularity in the pyloric antrum and pyloric canal of the stomach. Dr. Devendra Patel, cancer surgeon was consulted on April 6,1990 who suggested various investigations. The deceased underwent the investigations as suggested by Dr. Patel and she was admitted to Dr. Patel''s hospital on April 7, 1990. The deceased was given pro-operative treatment and Dr. Patel operated her on April 10, 1990. A standard partial gestrecttomy was done and sample thereof was sent for hystopathology examination. The deceased was discharged from the hospital of Dr. Patel on April 20,1990 and she was referred to Dr. Pankaj Shah, Chief Medical Oncologist at the cancer hospital for receiving adjuvant chemotherapy as may be advised by him. The deceased consulted Dr. Shah on April 25,1990 and chemotherapy was given to her and sonogram was done from April 26, to October 11,1990. The case of the deceased was referred to Tata Memorial Centre, Bombay in August, 1990. Radiotherapy was given to the deceased from November 20,1990 at the cancer hospital at Ahmedabad. The deceased was admitted to the civil hospital on November 30,1990 and was discharged on December 18,1990. Further treatment of the deceased was continued at her residence. However, her condition deteriorated. Barium meal test was again done in January, 1991. Dr. Shah again gave chemotherapy to the deceased from January 16,1991. On January 26,1991 the condition of the deceased became critical and she was admitted to the civil hospital at Ahmedabad on the same day. The deceased, however, died on January 27,1991.

The complainant, informed the Corporation about the death of the deceased. He was advised to submit a claim form. The complainant submitted claim form alongwith relevant documents to the Corporation on April 1,1991. The Corporation, however, did not settle the claim for six months. The complainant therefore addressed letter dated September 9,1991 to Dr. P.S. Pritam of the Corporation. C.E.R.C. also wrote letters to the Corporation on September 28,1991, requesting it to investigate the matter. The Corporation, however, did not take decision inspite of reminder sent to it. Ultimately, the Corporation by its letter dated March 31,1992 repudiated its liability under the policy on the ground that the deceased had withheld material information regarding the state of her health at the time when the proposal was made as aforesaid.

THE complainant has denied the allegations made in the letter repudiating the claim. It is submitted that the answers given by the deceased to the questions in the proposal form were correct. It is further submitted that the deceased had never suffered from hypertension or cancer at the time or before the proposal was made. THEre was therefore no suppression of material facts by the deceased and the Corporation could not have repudiated the complainant''s claim on the ground of such suppression. On the above grounds, the complainant has sought recovery of compensation of Rs. 2,22,000/- which includes assured sum of Rs 2 lakhs, Rs. 25,000/- as compensation for the mental torture and Rs. 10,000/- by way of cost from Corporation. The Corporation has filed written statement Exh. 7 contesting the complaint. It is submitted that the Corporation had fully considered the claim of the complainant and repudiated the claim in good faith on reasonable and sufficient grounds. There was therefore no deficiency of service on its part. The complainant therefore could not have filed complaint for recovery of compensation under the Consumer Protection Act. It is submitted that remedy, if any, to the complainant is to approach the Civil Court.

IT is submitted that Corporation had information to the effect that the deceased had remained on earned as well as commuted leave for a long time. However, the Corporation was not able to get complete information from the B.J. Medical College where the deceased was working. IT therefore took time to completely investigate the claim made by the complainant. IT was after investigation that the Corporation repudiated the claim. IT is submitted that many complicated questions of law and facts are likely to arise for consideration and therefore the proper course to adopt is to refer the complainant to Civil Court. The Corporation has not denied that the complainant and the deceased had taken Jeevan Sathi'' policy for a sum of Rs. 2 lakhs from it. The Corporation has, however, denied that all questions in the proposal form were correctly answered by them. The Corporation has denied the allegations that the deceased suffered pain in the abdomen and vomiting for the first time on April 5,1990 and that she had no knowledge about the disease from which she was suffering prior to that date. It is submitted that the deceased was suffering from hypertension and she was also taking anti cancer drugs before the date of proposal. Answers to question regarding health in the proposal form were not correctly answered. On the above grounds, it is submitted that the complainant is not entitled to claim the sum assured or any other compensation from the Corporation. We have already mentioned about the date of proposal and the date on which the deceased suffered abdominal pain and had vomiting. The proposal was made on March 31, 1990 and the deceased suffered the above symptoms within 5 days, on April 5. Radiological examination was done by Dr. Patel on April, 5 and malignancy in stomach was suspected. It is not stated whether a Physician or Surgeon was consulted before Radiologist Dr. Patel did barium meal investigation. It is not stated as to who suggested barium meal investigation. If, as stated by the complainant, the deceased suffered abdominal pain and had vomiting for the first time on April 5, ordinarily, one would not expect that she would be taken straightaway for barium meal test or investigation. It appears to us that the complainant is not fully and truly disclosing all the facts. There must be sound reason why barium meal investigation was done. The deceased must have consulted Physician or Surgeon prior to April 5 and in the course of treatment, it must have been suggested that the deceased should undergo barium meal investigation. After barium meal investigation was done by Dr. N.L. Patel, he gave his report on the same day i.e. April 5,1990 and Dr. Devendra Patel was consulted on April 6,1990. Laboratory investigation as suggested by Dr. Devendra Patel were done and the deceased was operated by him on April 10,1990. Dr. Narendra Patel''s radiological report and operative notes of Dr. Devendra Patel are placed on record. Dr. Devendra Patel had done partial gestrecttomy and specimen thereof was sent for Histopathology examination. Histopathology report dated April 11,1990 is also placed on record. Combined reading of the aforesaid report and operative notes make it clear that the cancer from which the deceased was suffering was at a fairly advanced stage. Such advanced stage could not have reached without symptoms. Development of cancer within few days from the date of proposal appears to be highly improbable. The complainant has not examined Dr. Narendra Patel, Dr. Devendra Patel for Dr. Pankaj Shah to whom case of deceased was referred by Dr. Devendra Patel. These doctors were best persons to throw light on the disease from which the deceased was suffering and the duration thereof. We find it difficult to believe that the deceased who herself was a Surgeon and Associate Professor of surgery would not notice symptoms of cancer till it was at an advanced stage. If the complainant''s story is to be believed, the deceased on suffering from abdominal pain and vomiting, investigations were made and the investigations revealed that there was cancer which had spread and was fairly advanced. We find it difficult to swallow the story of the complainant. As already observed above, in our opinion, the complainant is not disclosing all the facts relating to the ailment of the deceased fully and truly. The possibility of the complainant and the deceased taking the insurance policy after it was detected that the deceased was suffering from cancer could not be ruled out. We are not prepared to believe that the developments took place within a short time as stated by the complainant.

THERE is evidence on record to prove that the deceased had lost considerable weight in last one year before her death. It is sought to be suggested on behalf of the complainant that the deceased wanted to reduce her weight and therefore she was controlling her diet and it is therefore that she lost weight. The complainant has sought to prove this fact by examining Nurse Daksha Vyas. We are not prepared to believe the testimony of Daksha Vyas. It is significant to note that Gum, son of the complainant and the deceased, has stated in his deposition that except on April 4,1990, the deceased was regularly taking her meals. In other words, son of the deceased has not stated that the deceased was on controlled diet. Loss of weight in last one year is significant fact which goes to support the theory that the deceased was suffering from cancer quite sometime. Even if the deceased was controlling her diet, this was probably due to the fact that she was suffering from cancer. We are not prepared to believe that the complainant and the deceased came to know about the cancer or malignancy for the first time only on April 5, 1990.

THE notes which are made by Dr. Pankaj Shah under whose treatment the deceased was as stated above also show that the deceased was suffering from hypertension since three years prior to her examination by Dr. Shah. It was submitted on behalf of die complainant that the deceased was not suffering from hypertension prior to March 31,1990 and that she suffered from hypertension only after it was detected that she was suffering from cancer. This story is belied by the notes made by Dr. Pankaj Shah which clearly state that the deceased was suffering from hypertension since three years. As already observed, no attempt is made by the complainant to examine Dr. Shah and to seek his explanation regarding his notes. All the documentary evidence which has been referred to above is produced by the complainant before the Corporation. THE deceased had not disclosed that she was suffering from hypertension in answer to the question in the proposal form. It is true that hypertension is not directly related to the death of the deceased. In other words, hypertension was not the cause of the death of the deceased. But the fact remains that this important and material fact was not disclosed by the deceased in the proposal form. If material fact which was required to be disclosed was not disclosed, it certainly weakens the complainant''s case and we are inclined to believe that although the complainant and the deceased knew that the deceased was suffering from cancer, this fact was also not disclosed when the proposal was made. In fact, one would be inclined to take the view that it was only in order to get undue benefit that insurance was taken after it became known that the deceased was suffering from cancer. If, in the background of above facts, the Corporation has repudiated the claim of the complainant, it could not be said that such repudiation was not bona fide or was not justified. In our opinion, this complaint deserves to be dismissed.

In the result, this complaint is dismissed. The complainant shall pay to the opponent Corporation Rs. 2,000/- by way of costs. Complaint dismissed with costs.