(ORAL)

1.       The present appeal has been filed against the order of the State Commission dated 04.07.2017 allowing the complaint of the respondent.

2.       The brief facts of the case are that father of the respondent had insured his life with the appellant for a sum of Rs.30.00 lakh on 28.02.2005.  He unfortunately died on 12.06.2005. The claim was put up by the nominees but they had not received any information from the appellant about the claim.  They ultimately served a notice dated 28.02.2015.  The said notice was duly replied by the appellant vide its letter dated 04.03.2015.  Alleging deficiency in service on the part of the appellant, the complaint was filed.

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3.       The complaint was contested by the appellant.  The factum of death of insured is not disputed.  It was, however, contended that claim was repudiated on 02.06.2008 and copy of repudiation letter was sent through registered post on the same date i.e. 02.06.2008.  It is submitted that complaint which was filed in 2016, was, therefore, hopelessly barred.  It was also contended that at the time of taking the policy, insured deceased had suppressed the information that he was suffering with hypertension and, therefore, he had violated the terms and conditions of the policy and, therefore, claim was repudiated.

4.       Before the State Commission, both the parties led their evidences.  After hearing the arguments of learned counsel for the parties and perusing the relevant record, the State Commission on the point of delay in filing the complaint has held as under:

“Further contention of the non-applicant is that the claim is time barred as the deceased has died on 12.06.2005 and claim was repudiated on 02.06.2008.  There is no dispute about the fact that the insured died on 12.06.205 and claim was submitted to the insurance company.  The contention of the non applicant is that vide Anx. R 13, claim was repudiated on 02.06.2008 and specific contention of the non applicant is that Ex. R 13 was sent by registered post but no postal receipt or acknowledgment was submitted. Further the contention of the insurance company is that dispatch register was weeded out as per guidelines which could be weeded after three years.  This may be the guideline but nothing has been brought on record to show that actually the dispatch register was ever weeded out and there is no evidence to the effect that repudiation letter dated 2.6.2008 was ever communicated to the complainant, the complainant was having continuous cause of action until his claim was settled and it has

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also contended that letter dated 04.03.2015 Ex. 17 could not be termed as repudiation letter.  Reading of Ex.17 sounds like intimation that the claim has been repudiated and this letter dated 04.03.2015 Ex. 17 shows the casual manner of communication on the part of non applicants and in view of the above it may be held that the contention as regard to limitation is not sustainable.”

5.       It is argued by counsel for the appellant that since repudiation of the claim was done on 02.06.2008 and the copy was sent by registered post on the same day and since complaint has been filed after eight years, they did not keep the relevant register and also the postal receipts and acknowledgment.  It is submitted that fora below have not taken note of these facts and the relevant rules and has wrongly concluded that notice of repudiation was never sent. 

6.       Counsel for the respondent has argued that infact the appellant had never repudiated the claim of the respondent and had not taken any decision on it and that after receiving notice of the complaint dated 30.05.2016, they had manufactured that document.  It is submitted that it is obvious that in their reply dated 04.03.2015 to the said notice, there is no mention to the fact that appellant had repudiated the claim of the respondent and had sent any intimation to this effect.  Even this reply does not contain the date of repudiation and date on which repudiation letter was sent.  It is submitted that in view of these facts, Fora below has rightly concluded that repudiation letter was not served as alleged by the appellant and, therefore, cause of action being continuous one, claim was not barred by limitation. It is also argued that

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after receiving this letter from the appellant, respondent had also sought information regarding repudiation of his claim through RTI dated 10.02.2017 and the appellant did not reply the said RTI.  It is argued that specific information whether the claim was repudiated was sought through RTI but no reply was furnished.

7.       I have given my thoughtful consideration to the arguments of the counsel and have perused the file.  The burden to prove is upon the person / party who alleges a fact.  Since it is appellant who alleges that claim was repudiated vide order dated 02.06.2008 and due intimation was sent to the complainant, the burden is upon the appellant to prove this fact by producing cogent evidence on record.  No evidence regarding sending of that letter has been placed on record.  The argument addressed is that the complaint had been filed after a gap of eight years, hence, as per rules, relevant record was destroyed.  The respondent has even disputed passing of any order of repudiation by the appellant.  The respondents have relied on the reply of the appellant dated 04.03.2015 in response to the legal notice. The extract of letter dated 04.03.2015 of the appellant in response to the legal notice issued by the complainant is as under:

“Sir,

Reg : Policy nos. 412607756-410696773-410948330-410212338-195110265-on the life of Late Hari Om Gopalia.

Ref.   Your registered letter Dated Nil

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This has reference to your REGISTERED letter dated NIL received by us today the 4^th March 2015 regarding the above polices.

In this connection, we would like to furnish the following-

The policy under litigation 195110265 resulted into very early claim and hence, the concerned branch / division would have conducted the claim investigation on receipt of death intimation and during the investigation if it was found that there was suppression of material facts regarding health/habits/financial status of the proposer at the time of proposal, the claim would have been repudiated the claim as per provisions contained under Sec 45 of the Insurance Act 1938.  The concerned Branch office would have sent the necessary letters to the nominee regarding this already in 2005.

          However, we would like to inform you that the above case is beyond the LIMITATION PERIOD and at this juncture nothing could be entertained.  Moreover, your registered notice is served to DIVISIONAL OFFICE-I, BENGALURU instead of the concerned DIVISION or ZONAL OFFICE.

In the meantime, we request you to contact our Bhiwadi branch under Jaipur Divisional Office for further clarification in this matter.”

8.       From the language to the above letter, it is apparent that in this letter appellant has not averred that claim was repudiated.  This fact coupled with the fact that no evidence has been produced by the appellant to prove the

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service of the alleged repudiation letter clearly shows that they have failed to discharge the burden placed upon it by the law. The cause of action being continuous, and  the findings of the fora below on this issue cannot be find fault with. 

9.       It is also argued by learned counsel for the appellant that complainant had concealed the existence of pre existing disease i.e. hypertension at the time of buying the policy and, therefore, he had violated the terms and conditions. It is argued that fora below have not considered the certificate dated 28.08.2005 of the doctor certifying that deceased had been suffering with hypertension since long and treated by him off and on.  The fora below have rejected this argument on the ground that even though, the appellant had contended that deceased was suffering with previous disease called  hypertension and was undergoing treatment for the same in the past, the appellant had paid claim to the nominee of the deceased under the policies for the earlier years.  This fact shows that appellant while clearing the claims under previously bought policies approved it and did not reject it on the ground that deceased was an old patient of hypertension.  It is a fact that the appellant has not filed any document to prove or to even suggest by preponderance of evidence that deceased was suffering with hypertension and undergoing treatment since past.  It is also not shown whether at the time of issuing this certificate dated 28.08.2005, the medical officer had issued it on the basis of previous treatment record of the deceased.  There is no document

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or piece of evidence on record to suggest that entry made by the medical officer in his certificate was based on any treatment record. The very language of this certificate shows that the doctor has relied on his memory that too in the absence of patient being before him. I am sure the doctor must have examined thousands of patients of same name in his career till that day and therefore a document issued on the basis of memory, does not prove anything.   Also the deceased had not died of hypertension but he was found suffering with diarrhoea and vomiting and for that he was admitted in the hospital and subsequently succumbed to his disease. 

10.     In view of the above discussion, there exists no legal ground to interfere with the findings of the fora below.  Present appeal has no merit and same is dismissed with no order as to costs.