(Passed On 4/11/2016)

Per Mr. S. B. Sawarkar, Hon’ble Member

1. The instant appeal is filed against the order of the District Forum, Gadchiroli in Consumer complaint No. 15/2008, passed on 9/1/2009, granting partly the complaint and directing the OP to provide jointly or severely Rs. 50,000/- in Policy No. 973135597, Rs. 1,00,000/- in policy No. 973484180 and Rs. 10,000/- in policy No. 975772575 to the complainant with interest  upon the amount from 8/2/2007 at the rate of 9 percent per annum within 30 days from the date of the receipt of the order. Also to provide the complainant Rs. 5,000/- towards mental and physical harassment and Rs. 2,000/- towards  cost  in the span of 30 days from the  date of receipt of the order.
2. It is the case of the complainant that her husband deceased life insured (In short DLI) took six policies from OP. The DLI died on 29/4/2007. The OP, on filing claim, granted the claim in respect of 3 policies but repudiated the claim in respect of remaining three policies by number 973135597, 973484180, 975772575, dated 8/2/2008 on the ground of health of the DLI. Hence the complainant filed complaint with a prayer to provide her the policy claims of three policies of Rs. 2,50,000/- with Rs. 10,000/- as physical and mental harassment and Rs. 10,000/- as cost from the OP Nos. 1 and 2. 
3. On notice the OP Nos. 1 and 2 appeared before the Forum and with written version countered the complaint. The OPs admitted the DLI to have taken six policies and on his death to have paid the claim of  policies but submitted that the remaining three policies were taken within two years of the death. Hence were early claims and were therefore investigated. One of the policies vide No. 973135597 was endowment policy revived within three months before the death. As it was found that the DLI was suffering with cirrhosis of lever, Tuberculosis  and unhealing ulcer as per  the certificate issued by Doctor M.P. Kannake dated 27/04/2007 and as the policies had taken by proposal dated 8/2/2007 and 28/3/2007 and as the information about the disease  was not disclosed in the proposal form, the DLI violated the condition of the policy. Hence the policy claim was repudiated for suppressing the information. The repudiation therefore being correct, it may kindly be accepted and the complaint be dismissed.
4. The learned Forum heard both the parties. Perused the evidence and holding  that no cogent and convincing  evidence is presented by the OP that the DLI was suffering from  ulser with cirrhosis of the lever and TB prior to filing the proposal and was also aware of it to suppress the information intentionally. The contention of the OP cannot be accepted. The Forum therefore reasoning the order in the light of prior judgments passed by the superior Commissions. Passed the order as above.
5. Aggrieved against the order, the original OP Nos. 1 and 2 filed the appeal. Hence are called as appellant. The original complainant is referred as respondent.
6. Advocate Mr.  Badhe appeared for appellant and reiterating the stand of the appellant before the Forum, submitted that as per the certificate of Doctor Kannake the DLI was suffering from ulcer since six months with bleeding on coughing. He was also suffering from cirrhosis. He suppressed the information intentionally while submitting the proposal in  two recent policies and in revival of third policy. Therefore the DLI caused breach of the terms and conditions of the policy. However the learned Forum ignored the evidence and rejected the contentions of the appellant and also the absence of denial by the respondent. The learned Forum did not consider the factual aspect of evidence placed on record and passed a blanket and blattantly erroneous order. Hence it needs to be corrected. He relied on the Judgment passed by National Commission in LIC Vs. Krishan Chander Sharma  in revision petition No. 1935 of 1999 which treated the examination by Corporation doctor prior to grant of policy to be routine and held the suppression of disease information to be proper reason for repudiation of policy claim. The appellant therefore submitted that as the learned Forum did not properly appreciate the evidence, the impugned order may be set aside and appeal be allowed.  Advocate Mr. Mandlekar appeared on behalf of the respondent and in his written arguments referred the following cases inconsideration of the justifiability of the order.
   1.  Judgment passed by Chattisgarh State Commission, passed in Sushilabai Shukla Vs. LIC of India reported at I (2005) CPJ 78, wherein the Hon’ble Commission highlighted the nexus between the disease and the reason of death to be important to decide the repudiation of the claim.
   2. The Hon’ble National Commission Judgment passed in LIC Vs. Patel Ganeshbhai Ramjibhai reported at II (2007) CPJ 242 where the Commission held that when DLI is medically examined at the time of issuance of policy, the claim is wrongly repudiated.
   3. The Hon’ble Supreme Court Judgment in LIC of India Vs. Bibi . Padmavati  published at (1967) 37 COMP-CAS 667 (SC), decided on 31/1/67 wherein the Hon’ble Supreme Court held that the revival form speak of disorder leaving permanent mark on the insured health. The passing ailment are not considered as material of risk. Hence appellant cannot rely on them.
   4. The National Commission judgment passed in Surinder Kaur and other Vs. LIC of India published at II (2007) CPJ 32 in which the Hon’ble Commission held that repudiation based on medical history is unjustified.
   5. Judgment passed by the Hon’ble Supreme Court of India in LIC Vs. G.M. Channabasamma published at 1990 second law SC 954 wherein the Apex Court held that based on the report of the Corporation Doctor if policy is given and in the failure of proving the serious illness of the insured at the time of taking out the insurance policies cannot substantiate the repudiation.
   6. The Hon’ble National Commission Judgment passed in Harjeet  Kaur Vs. National Insurance Company Ltd. and others published at III (2009) CPJ 196 (NC) that the  insured cannot be presumed to be aware of the existence of illness or disease at the time of taking out the insurance policies, cannot be called as suppression.  
   7. The Hon’ble National Commission Judgment passed in New India Assurance Company Ltd. Vs. P. P.  Khanna, First Appeal No. 25 of 1994 decided on 18/3/1998 held that the insurance company needs to prove that the statement made by the complainant was fraudently  made by him with the knowledge that the suppression was of material facts.
   8. Hon’ble Supreme Court order passed in LIC Vs. Asha Goel  published at Civil Appeal No. 4186 of 1988 reported at AIR 2001 SC 549 held that a mere inaccuracy in recital of some items in the proposal is not sufficient for repudiation of the claim.
   9. Delhi State Commission, Judgment passed in LIC Vs. Chandrakala, Appeal No. A/407/2004 held that repudiating the legimate  claim preferred by the complainant on flimsy and unsustainable ground amounts to deficiency in service.
7. The advocate for respondent vehemently supported the Judgment passed by the learned Forum and submitted that the appellant did not file the affidavit of the Post Mortem  performing medical officer about the previous decease to the DLI. It also did not file evidence that the DLI knew about the ailment and suppressed them intentionally. Also the appellant’s medical officer examined the DLI and certified him to be without ailment to revive the policy. Hence in the light of the judgments submitted by him, the order being well reasoned requested to confirm it.
8. We considered the contentions of both the parties, documents on record written notes of arguments. We find that the DLI was examined by the doctor of the appellant on 8/2/2007 and the doctor has declared him to have been appearing as healthy person. There is no evidence on record which shows that prior to proposing two policies dated 8/2/2007 in policy number 975772575 and 973484189, the DLI  had taken treatment for his ailment and was well aware about its seriousness as threatening his life.. The only certificate given by Doctor Kannake makes a mention that he was suffering from  the disease since six months prior to his death on 29/4/2007. Even the certificate shows that  the DLI had consulted doctor Kannake on the day of his death only. If it is presumed that the DLI was suffering with the disease prior to consultation of doctor Kannake then how was he certified as healthy by the corporation doctor in medical examination dated 8/2/2007. Both the certificate on record are contradictory to each other. Thus, we find the appellant has not submitted  cogent evidence to show that the DLI was suffering with the disease prior to filing proposal in respect of two policies vide numbers 973135597 and 973484180 and when was examined by the appellants doctor. There is no evidence to show that the DLI suppressed the information with a fraudulent intention to acquire benefit from the appellant. Hence we find no ground to hold that the DLI was aware about the life threatening disease  in his body and suppressed the information from the appellant. Thus, the appellant has not shown the evidence to accept that the DLI ever  held back an information to violate the condition of utmost   faithfulness so as to refuse the claim of the policy. We also find that the judgment cited by the appellant in its support does not apply to present case as in these cases there was positive evidence of prior treatment and medical treatment. In the present case no evidence is adduced regarding previous medication. Thus that case and judgment does not come to the help of the appellant to further the cause of the appeal. The appeal therefore proves vacant without any material in it.
9. With reasons as recorded above, we find the impugned order passed by the learned Forum satisfies the test of reasonableness and confirms to ratios of judgment passed by the various Commissions. Thus it deserves to be confirmed. We therefore confirm it and pass the order as below. We find no reason to provide any cost to respondent. Hence the order.

ORDER

1. The appeal is dismissed.
2.  The order of the Forum is confirmed.
3. Parties to bear their own costs.
4. Copy of the order be given to all the parties free of cost.