National Consumer Disputes Redressal
Life Insurance Corporation Of India And ... vs Dr. P.S. Aggarwal on 25 October, 2004
Equivalent citations: 2005(1)ALT22, I(2005)CPJ41(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. This revision petition is directed against order passed by State Consumer Disputes Redressal Commission, Uttaranchal, setting aside the order of the District Forum and allowing the complainant to pay the entire amount of the two insurance policies of insurer, Smt. Manju Rani, along with all bonuses and profits with interest @ 12% and with compensation of Rs. 5,000/-.
2. The grievance of the petitioner is that the deceased was suffering from cough, expectoration, breathlessness (hoarseness of voice) for the last 2-3 years. Policy holder did not get these diseases recorded in the proposal form. The disease of breathlessness proved fatal and the cause of death has been mentioned as heart-attack with difficulty in breathing. This concealment of fact was sought to be supported by affidavit of Smt. Mala Rani, an officer of the Insurance Company, who had just copied its contents from the record of the Apollo Hospital. It was stated in her affidavit that on 1st April, 1999, Smt. Manju Rani was suffering from cough, expectoration, breathlessness (hoarseness of voice) for the last 2-3 years. She died in December 1999. The death report prepared at Ramnagar, Roorkee, indicated that primary cause shown was Myocardial Infarction and the secondary cause was shown as Cardio-respiratory failure. According to the Medical Attendant's Certificate and according to the death certificate of Vinay Nursing Home, she expired due to myocardial infarction (heart attack). It does not indicate any secondary cause.
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. In LIC and Ors. v. Asha God, I (2001) SLT 89=2001(2) SCC 160, the said judgment of Mithoolal Nayak was considered:
"In this connection, we may notice the decision of this Court in Mithoolal Nayak v. LIC of India, in which the position of law was staled thus:
The three conditions for the application of the second part of Section 45 are-
(a) the statement must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy-holder and
(c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose..."
But one thing was further observed in para-12 as under:
".....For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable inquiry by a prudent person."
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. The two life policies, one for Rs. 1 lakh and the other for Rs. 2 lakhs, were applied for in March, 1999. The deceased was medically examined before issuing the policy and ECG, BST and ray, etc. of the deceased was done. Additional premium of Rs. 3.35 per thousand was charged. Insurance policies, though ordinarily issued within 15 days or so, but in this case the insurer took complete 4 months to find as to whether the deceased was medically fit to issue the policy. The deceased was underweight. ECG did not show any heart problem. Doctor of the Insurance Company also reported that the insured was suffering from cough, expectoration, breathlessness (hoarseness of voice). After thorough examination, the deceased was found fit for insurance. Insurance Company could not produce any evidence to show that the deceased was admitted in Chandigarh, Roorkee and the Hospital of Dr. Veena Gupta or suffered an accident few years before her death. It was conceded before the State Commission by the Counsel for the Insurance Company. If hospital of Dr. Veena Gupta was a lady hospital, then the so-called Man Mohan Singh and Nand Kishore Garg, the person who are reported to have taken the earlier treatment, could not have been admitted in a lady hospital. In any case, they have not tiled any affidavit supporting the case of the Insurance Company. Dr. Veena Gupta was not examined. The Discharge Certificate from the Apollo Hospital showed that she was admitted on 1.4.1999 and discharged on 2.4.1999, that is very next date and diagnosis was bilateral intestinal disease and that too was under investigation. Her investigation report was given and she was discharged on satisfactory condition. She might be ill and she might not be ill even at that time for it was to be decided only after investigation and not before making the proposal. The proposal form was submitted in November, 1998. The policy was issued in March, 1999 after detailed examination, investigation and check-up. She was not being treated at any point of time for any heart ailment. The extraordinary suspicious approach without pleading and without proof could not be justified and the death did not have any direct nexus with Bronchiectasi. If the complainant thus wanted to get easy money out of insurance of his wife, he could have insured her life for Rs. 10 lakhs for the husband could pay the premium. He would not have taken her to Apollo Hospital for check-up or for that matter to Vinay Nursing Home for her treatment. No doubt, the complainant husband is a doctor but it would not mean that all the doctors would give wrong report at his behest, as was sought to be made out. Since there was no proof, the contention of the learned Counsel for the petitioner could not be accepted for numerous reasons. Firstly, the detailed examination conducted by the insurer and by the doctor of the insurer. Secondly, the insurer charged extra premium of Rs. 3.35 per thousand. Thirdly, issuing policy for 4 months were ment by the insurer to satisfy itself amount to deficiency in service. Fourthly, there was no direct nexus between bronchiectasi and heart failure.
5. The nature of ailment was not known only to the insured and the insurer, but it could also not be known even to the doctor of the Insurance Company despite detailed examination.
6. In the afore-mentioned circumstances, it is difficult to accept the contention of the learned Counsel for the petitioner that there was material concealment and as such Insurance Company was justified in repudiating the claim of the complainants.
7. Seeing the reasons given by the State Commission, it is not possible to reverse the judgment in absence of anything to show that the State Commission has exercised its jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction or with material irregularity. In revisional jurisdiction, this Commission is not supposed to substitute its own opinion, if two opinions are possible.
For the aforesaid reasons, the revision petition is dismissed and the parties are left to bear their own costs.