1.      The present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”), whereby the petitioner herein seeks to assail the order dated 18.2.2009 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (hereinafter referred to as “the State Commission”) in F.A. No. 627/2003. By the impugned order, the order dated 26.6.2003 passed by the Consumer Disputes Redressal Forum, Kottayam in C.C. No. 801/2000 has been set aside.

2.   The brief facts of the case are that Late Mr. Pushpangadan (hereinafter referred to as “the insured”), husband of the complainant, had taken four life insurance policies from the opposite party on four different occasions. On 26.5.1998, the insured passed away at the Kottayam Medical College, Kottayam, Kerala after undergoing treatment for six days prior to his demise at the same hospital.  The claim due under the policy No.790088986 was paid to Sri. A.K. Raveendran, brother of the insured. The complainant submitted the claim forms in respect of the remaining three policies.  However, the opposite party did not respond to the claims lodged by the complainant for quite some time. Aggrieved by the inaction as far as processing the claims under the remaining three policies was concerned, the complainant was compelled to approach the District Forum. During the pendency of the said complaint before the District Forum, the opposite parties repudiated the claim with respect to the remaining three policies on the basis of some enquiry.  Upon enquiry, The Insurance Company discovered that the life insured had suppressed material information regarding his health at the time of submitting his proposal for the remaining three policies.

3.      As regards the complaint filed by the complainant, the District Forum vide order dated 26.6.2003 dismissed the complaint.

4.      Aggrieved by the aforesaid order of the District Forum, the complainant appealed before the State Commission. The State Commission vide order dated 18.2.2009 concluded as follows:-

 “In the result appeal is allowed, the impugned order dated 26.6.2003 passed in O.P. 801/2000 is set aside. Respondent/opposite party is directed to honor the insurance claim put forward by the complainant with respect to the 3 policies referred to in the complaint.  The opposite party is also directed to pay compensation of Rs.10,000/- to the complainant with cost of Rs.1,000/-.”

5.      Hence the Revision Petition.

6.      Heard the parties and perused records.

7.      The learned counsel for the petitioner submitted that the remaining three policies bearing Nos. 781330334, 78132219 and 78046851 have resulted into an early death claim and the Insurance Company, therefore, conducted an enquiry. Upon enquiry, they found that the life assured had suppressed the material information regarding his health at the time of submitting the proposal for these three policies. The Learned counsel for the petitioner stated that as per medical records, particularly the medical attendant’s certificate dated 30.06.1999, it can be clearly understood that the insured was a diabetic patient for the past 15 years as is clear from the entry against the column 5 relating to cause of death, where it is clearly written ‘before death- diabetes-mellitus- 15 years’. To substantiate this claim the learned counsel also referred to the discharge summary of the medical college, which clearly states that the patient was a known diabetic for 15 years with irregular treatment. Apart from this , the learned counsel also drew our attention to the treatment history supplied by the Holy Ghost Mission Hospital on the request of LIC vide their letter dated 16^th March, 2001, wherein it is stated that he was a known diabetic on regular treatment.  The learned counsel further drew our attention to the cause of death mentioned at column 5 of the Medical Attendant’s Certificate that acute renal failure has been mentioned as one of the secondary cause of death and the primary cause is mentioned as diabetes militis.  It was argued that the renal failure may be a result of long standing diabetes.

8.  The learned counsel for the petitioner submitted that the insured suppressed material information, relevant for risk assessment, therefore the opposite party is justified in repudiating the claim. It was mentioned that column 5 E of the proposal form, which clearly asks for suffering from diabetes, has been wrongly answered as ‘no’. So it was a clear suppression of fact as the insured was suffering from diabetes for 15 years. The counsel further submitted that the insurance contract is based on the principle of mutual trust by which the parties are under legal obligation to disclose all material facts and any misstatements or misrepresentation by the insured entitles the insurer to repudiate the claim.

9.  The learned counsel for the petitioner has also cited the following judgements in support of the arguments:-

(i) Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. JT 2009 (9) SC 82.  It has been held that:

“20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a 12 prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.

22.1. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. We do not find any substance in the 14 contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated”.

(ii) Life Insurance Corporation of India Vs. Santosh Devi, IV (2014) CPJ 139 NC wherein it has been observed:-

“11. Since the mis-representation/suppression of fact related personally to the insured, it cannot be said that it was a bonafide suppression without any malafide intention. The concealment was of a fact which was exclusively in the knowledge of the insured and could not have been detected by the petitioner corporation by way of a reasonable and practicable inquiry.

12. For the reasons stated hereinabove, we are of the considered view that the District Forum and the State Commission fell into error in allowing the complaint despite mis-representation and concealment of material fact, by the insured. The revision petition is, therefore, allowed and the impugned orders passed by the District Forum and the State Commission are hereby set aside. No order as to cost”.

(iii)  Paramjit Kaur Vs. Life Insurance Corporation of India & Anr., IV (2014) CPJ 132 (NC). It has been held:-

“6. … In the present case, the opposite parties have fully established on record that the life assured was suffering from diabetes mellitus pulmonary tuberculosis, sepsis and was suffering from diabetes mellitus from 7 years as per form No. 3816 issued by Dr. P.K. Prasher, Fortis Hospital, Mohali. The history of illness of life assured goes prior to the date of submitting of proposal form in respect of the Insurance policies.

It cannot be disputed that the contract of insurance is contract uberrima fids and there must be complete good faith on the part of the assured and thus the assured is under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not”.

In this case, there is sufficient evidence on behalf of the opposite parties to prove the fact that the life assured had made false declaration and concealed the true and material facts with respect to his state of health and illness suffered by him. As such, the complainant is not entitled for any insurable benefits.

For the reasons recorded above, we do not see any infirmity in the impugned order passed by the District Consumer Forum while dismissing the complaint”

10.    The learned counsel for the respondent submitted that there has been gross deficiency of service on the part of the opposite party as they failed to respond to the claim lodged with them in 1999 and repudiated the same only in 2001, i.e. during the pendency of the complaint. It was further submitted by the learned counsel that the opposite parties have wrongly repudiated the claims of the complainant, which is not tenable in the eyes of law.

11.    The learned counsel for the respondent further stated that even in history recorded on 22^nd , May, 1998 at Kottayam Medical College, it is clearly mentioned that he is not a diabetic or a hypertensive.  Moreover, Dr. K. Vijay Kumar, who has signed the medical attendant’s certificate, has accepted in his cross-examination that he has not treated the patient and it was recorded on the request of the patient that he was diabetic for 15 years.  He has also admitted that kidney failure can be due to causes other than diabetes and there were no test to determine the duration of diabetes.

12.   The learned counsel for the respondent has also cited the following judgements in support of his arguments:-

(i) Life Insurance Corporation of India Vs. Badri Nageswaramma,  II (2005) CPJ 9 (NC).  It has been held:

“4. In Life Insurance Corporation of India v. G.M. Channabasemma, AIR 1991 SC 392 and L.I.C. and Ors. v. Asha Goel, I (2001) SLT 89=(2001) 2 SCC 160, the Apex Court has reiterated that burden of proving that the insured had made, false representations and suppressed material facts is undoubtedly on the Corporation.

5. From the facts discussed by the State Commission it is apparent that the L.I.C. has failed to discharge the said burden. When the policy was taken the insured was aged about 46 years and the medical officer certified that he was having good health. That medical officer is not examined by the Insurance Company. It is to be noted that the same Doctor has written a letter dated 9.8.1989 to the Branch Manager, L.I.C. of India that the deceased used to attend his clinic as out patient for getting injection Neurobion as advised by Santosham Chest Hospital at Madras. He was a known diabetic. To the interrogatories/questionnaire issued by the LIC Dr. Ravi T. Santosham has only stated that prior to six months, i.e., since 7.12.1989 he attended the deceased for treatment of diabetics and tuberculosis of lung and kidneys. The deceased had first consulted him on 4.6.1989. In our view such a certificate without any affidavit in support cannot be the basis for repudiating the claim.

6. Hence, the findings recorded by the State Commission cannot be said to be erroneous which would call for interference, as there is no conclusive evidence on record to suggest that there was any suppression on the part of the deceased. The Insurance Company has failed to prove suppression on the part of the deceased”.

(ii) LIC of India Vs. Joginder Kaur & Ors., II (2005) CPJ 78 (NC). It has been held:-

“11. No affidavit of any doctor who had treated him earlier was produced nor any other material piece of evidence had been produced to support the contention of the petitioner except opinions and inferences based on surmises. Even the investigation report has not been produced though the matter was not investigaed.It is contended that record of Dayanand Medical Hospital wherefrom the deceased got the treatment and O.P. No.1had collected death certificate, etc. has allegedly proved that the deceased was admitted on 16.8.1998 in Dayanand Medical Hospital. In this light, in absence of any evidence except filing the proposal form, etc. in the face of affidavits of Surinder Kaur, Inderjeet Kaur and Swaran Singh it is not possible to hold that the deceased was alcoholic. He got study award in his education. Simple allegations made by the petitioner that the deceased was alcoholic; was suffering from diabetes mellitus, and jaundice, etc. would not be sufficient. The unproved case history recorded by some person on the date of admission of Sh. Bachan Singh, the deceased, would not be cogent and convincing evidence to repudiate the claim unless it was coupled with medical report for the treatment prior to submission of the proposal form'.

13. Annexures Q. 3 and Q. 4 relied upon by the petitioner was rightly not found cogent and reliable as it was not brought on record as were who treated the deceased patient before he was admitted in the hospital. It has also not been proved that the patient had brought any letter from any doctor at the time of admission and that doctor was examined to prove his previous ailment to justify the submission that wrong statement was made by the deceased”.

(iii)  Life Insurance Corporation of India  Vs. Dr. P.S. Aggarwal,  I (2005) CPJ 41 (NC).  It has been held:-

“3. The onus to prove that there was material concealment of any disease, which directly proved fatal, was on the petitions Insurance Company. In addition to above, the petitioner was supposed to prove that at the time of taking policy, the person who gave the information, knew about such a disease and he withheld it with an intention to defraud the Insurance Company.

4. In the present case, it is evident that the information collected from the records of Apollo Hospital is not primary piece of evidence but the primary evidence would be of the doctors who recorded the information in Discharge Summary. The doctor who prepared the Discharge Summary has not been produced”.

13.   It was pointed out by the learned counsel that the responsibility to   prove the suppression of fact of pre-existing diseases lies solely on the Insurance Company.  In the present case, no treatment record or any other evidence has been produced by the petitioner that the insured was getting treatment for diabetes prior to filling of the proposal form.  All the treatment records filed by the petitioner/opposite party relate to his treatment when the policy-holder was admitted in the hospital where he finally died.  Kidney failure can be due to many reasons and it is not known when did it start. The complainant, who is the wife of the insured, clearly asserts that the trouble started only in the year 1998 and before that the insured was totally healthy.  So, there was no question of giving any information about diabetes or any other disease, as there was no such disease at the time of filling of the proposal form.  Clearly there is no suppression of fact and the State Commission has rightly allowed claim under all the three policies.

14.   We have carefully considered the arguments advanced by both the parties and have thoroughly examined the record as well.It is an undisputed fact that the insured had taken four policies from the opposite parties. It is admitted that the insured passed away on 26.5.1998. The claim with respect to Policy No. 790088896 has already been settled and the amount was duly paid to one Mr. A.K. Raveendran, nominee under the said policy. It is admitted that the complainant submitted the claim for the remaining three policies with the opposite parties, and since no response was forthcoming from their side, the complainant was forced to approach the District Forum. However, during the pendency of the complaint, the opposite party vide letter dated 04.09.2001 repudiated the claims under the remaining three policies on the ground that the insured had deliberately given false answers regarding his health at the time of effecting the assurance.                                        

15.  The details of the policies in dispute are as follows:-

16.  We find that the opposite party, LIC of India has not filed any document or proof to show that the complainant had knowledge of his disease of diabetes and that he was being treated for the same.  No record of treatment prior to the date of proposal form has been produced by the opposite party/petitioner.  Here it is pertinent to note that though the medical attendant’s certificate mentions cause of death as diabetes and also mentions that he was diabetic for 15 years, it has been issued after two years of the date of the death of the deceased.  Even the signatory Dr. K.Vijaykumar has stated in his cross-examination that it is not possible to know the duration of diabetes and he had recorded 15 years only on the information given by the insured.  On the other hand, Dr. K.Vijaykumar has also stated that he has not treated the insured.  Thus, these two statements become contradictory to each other.  Discharge summary of the Kottayam Medical College dated 26.05.1998 states that the deceased was diabetic for 15 years with irregular treatment.  The patient was admitted in the Medical College on 20.05.1998 and the record sheet of 20.05.1998 does not show any clear mention of his being diabetic for 15 years.  Rather, treatment sheet of 22.05.1998 under nephrology consultation, it is clearly mentioned ‘not a diabetic or hypertensive’.  Thus, during the treatment if he was not diagnosed as having diabetes or hypertension, how can this be mentioned in the discharge summary?  Even letter of Holy Ghost Mission Hospital dated 16.03.2001, which has been sent in reference to some letter of Branch Manager LIC, the hospital has stated that the patient was admitted on 17.05.1998 and that he was known diabetic on regular treatment.  This letter does not indicate the period of his diabetes.  Thus, this does not support the contention of the petitioner that the insured was a diabetic for 15 years.  Moreover, this Commission in RP No.2157 of 2014, New India Assurance Company Limited Vs. Rakesh Kumar, decided on 01.07.2014 (NC) has held the following:-

“7. We have referred medical literature on the subject of diabetes and noted that, in some cases of diabetes, there are no symptoms. People can live for months, even years, without knowing they have the disease and it’s often discovered accidentally after routine medical check-ups or following screening tests for other conditions. Hence, there are more chances that the complainant might have developed diabetes and hypertension during a span of 17 months after taking the policy. Thus, we do not find any concealment made by the complainant. The OPs failed to prove their contention; accordingly the repudiation of claim by OP is unjustified, it a deficiency in service.”

17.   As there is no evidence to support the contention that the insured was diabetic for 15 years at the time of his death, based on the facts of the case, it cannot be confirmed that he was diabetic at the time of filling of the proposal form.  Moreover, as held by this Commission in RP No.2157 of 2014, New India Assurance Company Limited Vs. Rakesh Kumar (supra), even if the complainant was diabetic, he may not be having any knowledge of his disease and the Insurance Company has not proved beyond doubt that the insured had knowledge of his illness of diabetes prior to filling of the proposal form as no treatment record prior to date of filling up the proposal form has been produced.  Hence, in this context, no question of suppressing the fact of his diabetes arises. 

18.    From the above examination, we are of the view that the petitioner has not been able to conclusively prove that the insured suppressed any fact regarding his health while filling of the proposal form.  Accordingly, we do not find any illegality, material irregularity or jurisdictional error in the order dated 18.02.2009 of the State Commission, which calls for any interference from this Commission.  Thus, the Revision Petition No.2942 of 2009, Sr. Divisional Manager, LIC of India Vs. P.R.Sumanagala is dismissed and order dated 18.02.2009 of the State Commission is upheld.  No order as to cost for this revision petition.