A was issued a Life Insurance 'Jeevan Anand' Policy No. 12345678 with sum assured of ₹ 5,00,000. B his spouse was a nominee under the said Policy. The date of commencement of the Policy was 4.12.2012. Unfortunately, on 2

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A was issued a Life Insurance 'Jeevan Anand' Policy No. 12345678 with sum assured of ₹ 5,00,000. B his spouse was a nominee under the said Policy. The date of commencement of the Policy was 4.12.2012. Unfortunately, on 26.9.2015, due to unknown reasons A committed suicide. B lodged a claim with the Divisional Manager of XYZ Insurance Co. Ltd., but the same was rejected, vide letter dated 24.6.2016, on the ground that the deceased concealed material facts at the time of buying the insurance policy. B filed an appeal before the Zonal Manager of XYZ Co. Ltd. against the order of the Divisional Manager of XYZ Co. Ltd. The Zonal Office upheld the repudiation decision of the Divisional Office and dismissed the Appeal, vide order dated 9.11.2016. B then filed an Appeal before the Claims Disputes Redressal Committee, XYZ Co. Ltd. of India, no decision was taken by the aforesaid Committee for quite a long time. B then filed a complaint before the National Consumer Redressal Commission, New Delhi. The Complaint was contested by XYZ Co. Ltd. stating that after the death of the deceased life assured (for brevity 'DLA'), a claim was lodged which was immediately examined and it was found that the DLA was suffering from Bipolar Disorder (a mental illness) and had taken treatment from different places and this material information had been deliberately suppressed by him while taking the Policy. In the proposal form made on 2.2.2012, while filling the questionnaire regarding his medical condition, he answered in the negative. However, the deceased remained hospitalised at Neuro Psychiatry and Drug Deaddiction Rehabilitation Centre during 2008 to 2009 and later in 2015. Hence, the claim of the Respondent (B) was repudiated, vide letter dated 24.6.2016, pleading that there was no deficiency in service or unfair trade practice on the part of the Insurer and prayed for dismissal of the Complaint. XYZ Co. Ltd. further stated that the Consumer Courts at District and State levels erred in interpreting section 45 of the Insurance Act, 1938. According to section 45 of the Act, which has been amended w.e.f. 26.12.2014, Policy is not to be questioned on ground of misstatement after three years. It was further stated that the State Commission and District Forum failed to appreciate the law laid down by this Commission in other cases. In one of the case, the Policy was questioned after two years and the Hon'ble Commission had observed that as the insured made untrue declaration, as such the orders of the Fora below were set aside and the Consumer Complaint was dismissed. The Insurance company submitted that the insured was under solemn obligation to make true and full disclosure of information which was within his knowledge, in the proposal form and withholding of such information or making misstatement was a fraudulent act and breach of principle of utmost good faith and the insurer was justified in repudiating the claim under the provisions of section 45 of the Insurance Act, 1938. It was further submitted that both the consumers forums at District as well as State Level erred in appreciating that life insurance agents do not act as an agent of XYZ Co. Ltd. The agents work on commission basis, and there was no relationship of employer-employee or master-agent between the XYZ Ltd. and the agents. It also submitted that in various cases Hon'ble Supreme Court has held, "It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment. XYZ Co. Ltd. also mentioned that in the said judgement, Hon'ble Supreme Court also observed that, "In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves." The District Forum directed the Petitioner to pay ₹ 5,00,000 being death claim of the deceased to the Complainant and ₹ 25,000 as Compensation for deficiency in service, unfair trade practice and mental agony suffered by the Respondent along with ₹ 10,000 towards cost of litigation. The above order was to be complied within 30 days of its receipt by the Petitioner (Insurance Company). Thereafter, they shall be liable for an interest @ 12% p.a. from the date of institution of this Complaint, till it is paid, apart from cost of litigation. Being aggrieved by the order of the District Forum, the Petitioner filed an Appeal before the State Commission. The State Commission, vide order dated 28.11.2017, dismissed the Appeal and upheld the order passed by the District Forum. It stated that the A took the life insurance policy on 4.12.2012, whereas he died on 26.9.2015 i.e. after a period of more than two and a half years from the date of commencement of the policy. Being aggrieved by the order passed by the State Commission, the Petitioner Insurance company filed the Revision Petition before this Commission (National Commission). According to B, the deceased was asked to simply put his signature on the proposal form and rest of the columns and answers were filled by the insurance agent. The entire proposal form was filled in the handwriting of the insurance agent. The deceased cannot be made responsible for concealing information, filed by the insurance agents. The Respondent's contention was that the insured was simply asked to append his signature and all other answers were filled in by the agent, in his own handwriting. The deceased cannot be held responsible for concealing any facts. This aspect is well covered by judgment in LIC Vs. Bina Joshi where the entries filled by agents, the policy holders were not blamed for concealing information. It is very clear that as per Section 45 of the Act in force when the proposal was made and Policy taken, no Insurance Policy can be repudiated after two years on the grounds of concealment/suppression of facts. The amendment to Section 45 providing a period of three years came later in 2014. The present case is covered by this section before its amendment and the deceased died after more than two years nine months after taking the Policy. In view of the above, National Consumer Commission confirmed the orders of the State Commission and the District Forum and dismissed the Revision Petition filed by XYZ Co. Ltd. From the information given above, answer the following questions: Explain the provisions of Section 45 of Insurance Act, 1938 and how do these provisions affect the assured after the amendment of 26.12.2014?

Answer & Explanation:

Section 45 of the Insurance Act, 1938 provides the remedy to a Life Insurer for breach of the condition of utmost good faith (uberrima fidei) on the part of the life assured. It gives the right to the Life Insurer to repudiate a claim under a Life Insurance Policy if there was a misstatement, concealment or misrepresentation on any fact which was material to consideration of the risk by a Life Insurer. Section 45 as it stood before the Insurance Laws (Amendment) Act, 2015: It gave powers to cancel a policy or repudiate on the establishment of misstatements, concealment or misrepresentation by the Life assured any time after the issue of the policy. However, after a period of 2 years from taking the policy or reinstatement of a lapsed Policy, only if fraud is established on the part of the life assured, cancelling a policy or repudiation of the claim was possible. Amended Section 45 (w.e.f. 26.12.2014): By the Insurance Laws (Amendment) Act, 2015, a 3-year time limit has been fixed for any cancellation of policy or repudiation of claim on the above grounds. After the passage of the Amendment Act (which was preceded by an Insurance Laws Amendment Ordinance on 26 December 2014), no Life insurer can call in question a life insurance Policy (cannot cancel or repudiate a policy) on any ground whatsoever (whether for misrepresentation, concealment or misstatement on the grounds of fraud or even otherwise), after a period of 3 years from the date of taking the Life insurance policy (3 years from the date of commencement of Policy) or 3 years from the date of reinstatement of a lapsed Policy whichever is later. However, within the above 3 years period, Life insurance companies are well within their right to call such policies in question if they are able to prove with documentary evidence that such misstatements etc., were material to the Underwriter for consideration of the risk and could have significantly impacted the decision of the Underwriter. Where Fraud is established, premiums paid till the date of such cancellation or repudiation can be forfeited. However, where the mis-statements were proved to be unintentional, premiums paid by the Life assured till the date of cancellation or repudiation will have to be refunded. Amended Section 45 states that no policy of life insurance shall be called in question for any reason whatsoever after a period of 3 years from the date of: Commencement, Issuance, Reinstatement, or Date of rider, whichever is later. Within 3 years, claim can be repudiated on the grounds of fraud, misrepresentation (or) on the grounds of incorrect misrepresentation (no fraud). Refund of premium is mandated where repudiation is on the grounds of incorrect misrepresentation. Grounds and materials based on which repudiation is made must be communicated to the Claimant. For ULIPs: Repudiated within 3 years from the date of revival, Fund value on the date of revival + premiums collected upon reinstatement + premiums collected subsequent to revival to be refunded. In the case of Money back policies: Where repudiation happens due to misrepresentation at the time of reinstatement, premiums from the date of reinstatement of a lapsed policy, till the date of repudiation to be refunded after adjusting any Survival Benefits, if any, paid after the date of revival. No repudiation possible if the reinstatement was made just by paying arrears of premium with or without interest, but without any Declaration of Good Health. No repudiation possible if the facts alleged to have been misrepresented by the Life assured were within the knowledge of the Agent who had sourced the Policy from the Customer.

Topics: Life Insurance Law

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