BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR


APPEAL NO: 1917/2006


Life Insurance Corporation of India,

through Divisional Manager,

Ajmer.

Opposite party-appellant


Vs.


Trilochan Singh

Gurunanak Furniture, Naya Bazar,

Distt. Ajmer.

Complainant-respondent


Date of judgment 15.4.09


Before:


Mr.Justice Sunil Kumar Garg- President

Mr.G.S.Hora -Member


Mr.J.P.Sharma counsel for the appellants

Mr. Pradeep Srivastava counsel for the respondent


JUDGMENT


BY THE STATE COMMISSION, ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT )


This appeal has been filed by the appellants LIC against

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order dated 19.9.06 passed by the District Forum, Ajmer in complaint no. 96/2006 by which the complaint of the complainant was allowed in the manner that the appellants were directed to pay a sum of Rs. 1ac om respect of policy no. 184753951 and Rs. 1 lac in respect of policy no. 184401244 to the complainant respondent within two months failing which the complainant would be entitled to interest @ 9% p.a. from the date of filing of the claim with costs of Rs.1000/-.


2. It arises in the following circumstances-

That the complainant respondent had filed a complaint before the District Forum, Ajmer on 5.4.06 inter alia stating that his wife Harbhajan Kaur , now deceased had taken the following life insurance policies from the appellants during her life time-


S.no.


Policy no.


Amount


Period


Date



1


181631800


Rs. 1 lac


20 years


31.12.97



2


180975538


Rs.50,000/-


20 years


08/09/93



3


184401244


Rs. 1 lac


45 years


26.12.2000



4


184753951


Rs. 1 lac


20 years


04/01/03



It was further stated in the complaint that the deceased had died on 10.9.03 due to heart attack and after the death of the deceased the complainant respondent had preferred the claim being the husband and nominee of the deceased before the office of the appellants .


Note- So far as the payment of the amount in respect of policy no. 1 bearing no. 181631800 and another policy no.2 bearing no. 180975538 is concerned , there is no dispute on

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the point that the payment in respect of above two policies had been made by the appellants to the complainant respondent and the dispute pertains to policy no. 3 bearing no. 184401244 and policy no.4 bearing no.184753951 and the claim in respect of policies bearing no. 184401244 was repudiated by the appellants through letter dated 15.4.04 on the ground that before taking the policy in question the deceased had filled in up a declartion form regarding her health on 26.12.2000 in which she had not mentioned that she was suffering from any kind of disease but they had the sufficient proof to prove the fact that prior to that , the deceased was suffering from Hypertension, Diabetic Mallitus and had consulted the medical man and had taken the treatment from the doctor and since these facts were not disclosed by the deceased in her declaration form on 26.12.2000 at the time of taking the policy, therefore, the deceased was guilty of suppression of material facts regarding her health. Further the claim in respect of policy no. 4 bearing no. 184753951 was repudiated by the appellants through letter dated 15.4.04 on the same grounds as it was repudiated in respect of policy no.3 bearing no. 184401244 but it may be stated here that declaration regarding health on the part of the deceased was given by the deceased on 4.1.03 in respect of policy no. 4 bearing no. 184753951.


Thereafter the present complaint was filed.


A reply was filed by the appellants on 2.6.06 and in the reply they have taken the same pleas which were taken by them in the repudiation letters dated 15.4.04. Further

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in respect of the above two disputed policies it was stated in the reply that as per the record, the deceased had consulted Dr. Bharat Sapra on 23.3.03 where he had found the case of hypertension and diabites mallitus and further she was admitted in the Jawaharlal Nehru Hospital,Ajmer for the period 11.7.03 to 25.7.03 where Hypertension and Diabetic Mallitus was found and in the past history it was mentioned that these diseases were of ten years old. It was further stated in the reply that she was again admitted in the same hospital for the period from 7.8.03 to 17.8.03 and the same diseases were diagnosed which were diagnosed earlier. It was further stated in the reply that the deceased was again admitted in the Monilek Hospital, Jaipur for the period 17.8.03 to 21.8.03 where the known case of DM- ILD-CAD was found and thus from the above record it is established that prior to giving the declaration on 26.12.2000 and 4.1.03 the deceased was aware of the fact that he was suffering from the above mentioned diseases and since they were not mentioned in the declaration form, therefore, it was a case of suppression of material facts regarding health on the part of the deceased and it was prayed that claim was rightly repudiated by the appellants and complaint be dismissed.


After hearing the parties the District Forum, Ajmer

through impugned order dated 19.9.06 had allowed the complaint inter alia holding that -


(i) That so far as the policy no. 3 bearing no. 184401244 was concerned, for that the complainant respondent was entitled to the benefit of S.45 of the 5


Insurance Act as the death in that case had taken place after expiry of two years of the issuance of the policy in question.


(ii) That in respect of policy no.4 bearing no. 184753951 it was found that the deceased was admitted in the hospital for the first time on 23.3.03 though the declaration was made by the deceased regarding her

health on 4.1.03, therefore, there is nothing on record to prove the fact that prior to taking the policy i.e. on 4.1.03 the deceased was the patient of above mentioned diseases and thus it was not a case of suppression of material facts regarding health on the part of the deceased.


(iii) That the appellants were not justified in repudiating the claim of the complainant respondent and it had amounted to deficiency in service on the part of the appellants.


Aggrieved from that order dated 19.9.06 passed by the District Forum, Ajmer , this appeal has been filed by the appellants.


3. In this appeal the main contention of the learned counsel for the appellants is that before issuance of policy in question, the deceased was suffering from the diseases of Hypertension and Diabeties Mellitus for which she took medical treatment from the doctor and since these facts were not disclosed by the deceased deliberately in her declaration form on 25.12.2000 and 4.1.03 , therefore, she was guilty of suppression of material facts regarding

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health and thus on that ground the claim of the complainant respondent was rightly repudiated by the appellants through letters dated 15.4.04 and the District Forum had committed serious error and illegality in decreeing the claim of the complainant respondent. Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.


4. On the other hand, the learned counsel appearing for the respondent has supported the impugned order of the District Forum .


5. We have heard the learned counsel for the appellants as well as for the respondent and gone through the entire materials available on record.


Findings in respect of policy no.3 bearing no. 184401244


6. There is no dispute on the point that the deceased had taken a life insurance policy for a sum of Rs. 1 lac from the appellants on 26.12.2000.


7. There is also no dispute on the point that at the time of taking insurance policy , a declaration was made by the deceased and in that declaration on 26.12.2000 , she had not mentioned that she was suffering from any kind of disease or had taken any treatment from any hospital.


8. There is also no dispute on the point that deceased had died on 10.9.03 meaning thereby after expiry of two years of issuance of the policy.

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9. There is no dispute on the point that the claim of the above mentioned policy was repudiated by the appellants through letter dated 15.4.04 on the grounds mentioned therein.


10. It may be stated here that there is nothing on record to prove the fact that prior to giving the declaration regarding health on the part of the deceased i.e. on 26.12.2000, the deceased was ever admitted in any hospital for taking the treatment and thus it is a fit case where benefit of S.45 of the Insurance Act should be given to the complainant respondent and the same was rightly given by the District Forum as in this case death of the deceased had taken place after two years of the issuance of the policy and if the policy is called in question after passing of two years of its being effected, heavy burden lies on the insurer and in such case, insurer is required to prove the following facts-


(a) That policy holder concealed or suppressed material facts.


(b) That such suppression or concealment was fraudulently made by the policy holder.


(c) That policy holder was aware at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. In other words, policy holder knowingly and deliberately gave incorrect information in the personal statement.

In the present case, the appellants (insurer ) have miserably failed to prove or establish the aforesaid facts.


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11. Thus, it is held that the findings recorded by the District Forum in respect of policy no. 184401244 are liable to be confirmed one.


Findings in respect of policy no. 4 bearing no. 184753951


12. There is no dispute on the point that the deceased had taken a life insurance policy for a sum of Rs. 1 lac from the appellants on 4.1.03.


13. There is also no dispute on the point that at the time of taking insurance policy , a declaration was made by the deceased and in that declaration on 4.1.03 , she had not mentioned that she was suffering from any kind of disease or had taken any treatment from any hospital.


14. There is also no dispute on the point that deceased had died on 10.9.03 meaning thereby within two years of issuance of this policy.


15. There is no dispute on the point that the claim of the above mentioned policy was repudiated by the appellants through letter dated 15.4.04 on the grounds mentioned therein.


16. From the record it is found that the deceased had consulted Dr. Bharat Sapra on 23.3.03 and the following diseases were diagnosed by Dr. Sapra -


1. Hypertension & DM

2. Constipation

3. Dyspepsia

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and on 11.5.03 when the deceased was further examined by Dr. Sapra, he had found the following diseases-


1. Uncontrolled DM

2. Constipation

3. HTN

4. NAFLD


17. From the record it is further established that on 17.7.03 the

deceased was admitted for the first time in Jawaharlal Nehru Hospital, Ajmer where IHD, Hypertension and Diabities Mallitus was found and he was discharged from the hospital on 22.7.03 and in the bed head ticket of that hospital, it was also mentioned in the column past history that the deceased might be a patient of Diabities Mallitus for the last ten years.


18. From the record it is also established that the deceased was again admitted in the Jawaharlal Nehru Hospital, Ajmer on 7.8.03 and was discharged on 17.8.03 and the diseases DM, DILD pulm HT were found and in the past history it was mentioned that the deceased was a patient of Hypertension and Diabities for the last 8 to 10 years.


19. Further the deceased was admitted in the Monilek Hospital, Jaipur on 17.8.03 and was discharged from the hospital on 21.8.03 and the same diseases were diagnosed.


20. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum could be sustained or not and whether the


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repudiation of the claim of the complainant respondent by the appellants was justified or not.


21. It may be stated here that there is nothing on record to prove the fact that prior to 4.1.03, the date on which the declaration regarding health was given by the deceased, the deceased had taken treatment from any hospital or she had consulted medical man and from the record it has come to the picture that the deceased had consulted Dr. Bharat Sapra for the first time on 23.3.03 where the diseases of Hypertension and Diabites Mellitus was found.


22. It may further be stated here that the past history recorded in the bed head ticket of the hospital could not be trated as primary piece of evidence to prove any fact unless and until the doctor who had recorded that history had been produced and primary evidence would be of the doctor who had recorded the information in the bed head ticket. For that law laid down in the case of LIC Vs. Dr. P.S.Agarwal reported in NCJ 2005 181 (NC) may be referred to.


23. In this case the doctor who had recorded the past history had not been produced and,therefore, no reliance could be placed on past history recorded in the bed head ticket.


24. Since in the present case there is no documentary proof or evidence available on record to show that the deceased was admitted in any hospital for taking the treatment of any disease prior to filling in up the declaration form on 4.1.03 , it could not be said that the deceased was guilty of suppression of material facts about his health. No doubt in the hospital record it was

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mentioned that the deceased was suffering from the disease of Hypertension and Diabetes Mellitus for the last ten years but to corroborate to prove that entry, no documentary proof or evidence or material has been produced by the appellant showing that the deceased had earlier taken the treatment of hypertension and diabeties in any hospital.


25. Thus, the appellants had misrably failed to produce any document or paper to show that the deceased had taken the treatment for the disease of kidney prior to filling in up the fresh declaration form, therefore, it could not be said that it was a case of suppression of material facts regarding his health on the part of the deceased.


26. Thus, for the reasons stated above, it is held that non-mentioning of the disease 'diabities and hypertension ' in the declaration form dated 4.1.03 which was filled in up by the deceased at the time of taking the policy does not amount to suppression or concealment of material fact or mis-statement in real sense and,therefore, the appellants were not justified in repudiating the claim of the respondent complainant on the ground of suppression of material facts and the appellants have repudiated the claim of the complainant without any basis and on wrong assumption and in an arbitrary manner and in view of this the findings of the District Forum decreeing the claim of the complainant are liable to be confirmed as they are based on correct appreciation of entire materials and evidence on record and they do not suffer from any basic infirmity,illegality or perversity and this appeal deserves to be dismissed on merits.




On point of interest


35. Since in this case the District Forum had awarded interest @

9% p.a. from the date of filing of the claim and it is just and proper to award interest @ 9% p.a. from the date of filing of the complaint and to that extent the impugned order of the District Forum on point of interest deserves to be modified.


Accordingly, the appeal filed by the appellants is dismissed on merits. However, the complainant respondent would get interest @ 9% p.a. from the date of filing of the complaint and to that extent the impugned order of the District Forum,Ajmer dated 19.9.06 on point of interest stands modified.




(G.S.Hora) (Justice Sunil Kumar Garg)

Member President