H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.



Appeal No. 190/2007.

Date of Decision 28.07.2009.

In the matter of:



Life Insurance Corporation of India, through its

Senior Divisional Manager, Divisional Office,

Block No. 14-15, SDA Complex, Kasumpti, Shimla-9.



… … Appellant.

Versus



Ms. Parvati Bhandari, Wd/o Sh. Alam Singh Bhandari,

R/o Shop No.13, Shopping Complex, Industrial Area,

Mehatpur, Tehsil & Distt. Una, HP.

… … Respondent.



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? Yes.



For the Appellant: Mr. G.D. Sharma, Advocate.



For the Respondent: Mr. Surinder Verma, Advocate vice

Mr. Subhash Sharma, Advocate.



O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).



Heard learned counsel for the parties. Mr. Sharma learned counsel for the appellant submitted, that the impugned order is not sustainable in any circumstances whatsoever in the light of the facts of this case. According to him contract of insurance is based on utmost good faith and bonafide. Therefore before obtaining the insurance policy, the life assured is supposed to give true and correct facts in the proposal form particularly in relation to his state of health. In the instant case when the deceased-life assured submitted the proposal form, he withheld the material facts regarding his state of health, as he was then suffering from diabetes mellitus. This was a fact which ought to have been disclosed in the proposal form according to Mr. Sharma. Thereafter it was for his client to have decided as to whether the life assured is to be insured or not, or whether any extra premium was to be charged from him. Therefore this is a case of intentional suppression of material fact and constitutes fraud within the meaning of Section 45 of the Insurance Act, 1938. He thus prayed for allowing this appeal. All these pleas were seriously contested by Mr. Surinder Verma, learned counsel for the respondent. He submitted that there was no suppression of any fact as alleged by the appellant. Further according to him, even if it be assumed for the sake of argument without conceding that it was, even then there was no direct nexus between the cause of death and the alleged withholding of material information regarding the state of health by the deceased. Thus he prayed for dismissing the appeal while upholding the impugned order.

2. Deceased was under treatment at Government Medical College and Hospital, Chandigarh immediately prior to his death. In his death report the doctor had opined the cause of death cardio respiratory arrest secondary to cerebro-muscular accident with systemic mucor mycosis.

3. Record of the complaint file shows that Dr. Rohit Tandon was summoned for being examined with a view to establish the death report etc. and medical record of the Government Medical College and Hospital, Chandigarh. Letter of request was received from him as is evident from the zimni order dated 22.12.2006. Appellant was supposed to file his correct address, this fact is evident from the order dated 22.12.2006 and 3.2.2007. When case came up on 16.3.2007, since steps had not been taken for summoning the said doctor, as such the evidence of the appellant was closed. After the evidence of the appellant was closed, thereafter complaint was allowed directing the appellant to pay Rs. 50,000/- with interest @ 9% per annum from the date of filing of the complaint, i.e. 5.1.2005 till final realization alongwith litigation cost of Rs. 1,000/-.

4. Keeping in view the totality and facts and circumstances of this case, appellant having failed to take steps to summon the doctor with a view to prove its case, we find that the order of the District Forum below suffers from no infirmity which may call for interference in this appeal.

5. When the proposal form was being got filled by the Agent/Development Officer, whether the life assured was put to notice that any wrong or mis-statement or suppression of fact(s) about his state of health would disentitle him or his legal representative(s)/nominee(s) as the case may be from the benefit of the sum assured etc. there is no evidence on record placed by the appellant. This in our opinion was necessary as per law, i.e. Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests), Regulation 2002. So, on this ground also this appeal must fail.

6. On the basis of the material on record it cannot be said that the view taken by the District Forum below was not one of the two possible views that arrived at. It is by now well settled that where two views are possible on the basis of material on record, one favourable to the consumer needs to be followed. That being the position, we are of the view that this appeal merits dismissal being without merit. Ordered accordingly.

7. Moreover from record it could not be shown that there was any nexus between the suppression of alleged disease with the cause of death.

8. No other point is urged.

In view of the aforesaid discussion while dismissing this appeal, order passed by District Forum, Una in Consumer Complaint No. 1/2005, dated 4.4.2007 is upheld, leaving the parties to bear their own costs.



All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

July 28, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.