National Consumer Disputes Redressal
Smt. Budhiben Pababhai vs Lic Of India & Ors. on 24 November, 2009
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1312 OF 2006 [Against the order dated 06.10.2005 in Appeal No. 199/2004 of the State Commission, Gujarat] Smt. Budhiben Pababhai, Wd/o Pababhai Malde, R/o Village Bhogat, Tal. Kalyanpur, District Jam Nagar, Gujarat. Vs. 1. LIC of India through its Sr. Divisional Manager, Jeevan Prakash, Relief Road, Ahmedabad, Gujarat. 2. LIC of India through its Sr. Divisional Manager, Jeevan Prakash, Tagore Road, Rajkot, Gujarat. 3. LIC of India, Matli Branch, through its Manager, Khambalia, Gujarat. Petitioner/Complainant Respondents/Opp. Parties Appearance : For the petitioner/complainant Mr. Raghu Tandon & Mr. R.B. Phookan, Advocates For the respondents/opp. Parties Mr. Mohinder Singh & Mrs. Diksha Ahuja, Advocates BEFORE: HON'BLE MR. JUSTICE B.N.P. SINGH, PRESIDING MEMBER HON'BLE MR. S.K. NAIK, MEMBER Pronounced on : 24.11.2009 ORDER
PER S.K. NAIK, MEMBER In this revision petition challenge is by the petitioner/complainant to the order passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (State Commission for short), who vide its order dated 6th of October, 2005 had dismissed her complaint, which had been allowed by the Jamnagar District Consumer Disputes Redressal Forum (District Forum for short) directing the respondents/Life Insurance Corporation of India to pay to the petitioner/complainant a sum of Rs.50,000/- towards the amount of insurance together with all benefits and interest @ 9% from the date of complaint till realization and also pay a sum of Rs.2500/- towards the cost of litigation. The order of the District Forum too has been set aside by the State Commission.
Facts, in brief, are that the husband of the petitioner/complainant had obtained a money back insurance policy with accident benefit for a sum of Rs.50,000/- for a period of 20 years on 28th of March, 1993. He, however, died on 20th of July, 1994 i.e. within 16 months from the inception of the policy. His widow, the present petitioner/complainant, in her capacity as the nominee under the policy filed a claim for the payment of the insurance value.
When the claim was not settled in time, a legal notice too was issued but was not responded to. This forced the petitioner/complainant to file a consumer complaint before the District Forum, who, as already stated, gave her the relief. On an appeal that wise filed by the respondents/Life Insurance Corporation of India alleging that the District Forum had ignored the fact that the deceased/Life Assured had suppressed the material facts, the State Commission relying on the evidence that was pointed out by the counsel for the respondents/Life Insurance Corporation of India believed their version and set aside the order of the District Forum, resulting in the dismissal of the complaint.
Dissatisfied and aggrieved on the order passed by the State Commission, the petitioner/complainant is before us in the revision petition.
Learned counsel for the petitioner/complainant very ably and with vehemence has argued that the State Commission has failed to appreciate that the panel doctor of the respondents/Life Insurance Corporation of India Dr. S.D. Mehta in his report given only a day prior to the issuance of the policy under column-10 of the Medical Examiners Confidential Report against the question Is there any evidence of enlargement of liver or spleen? has answered as No. Thus, the panel doctor after examination did not find that the deceased/Life Assured was suffering from any disease related to liver or spleen. Strangely, the same doctor has later filed an affidavit to say that the insured had intentionally concealed that he was suffering from Sirosis and Kokas Abdomin. Learned counsel submits that there was no basis for Dr. Mehta to have changed his version, specially when he had himself examined the Life Assured and given a clean chit. His affidavit, therefore, should have been rejected on the ground of being an interested person.
Learned counsel for the petitioner/complainant further submits that the other evidence relied upon by the State Commission pertains to the affidavit of one Dr. A.K. Behra, who stated that the Life Assured had approached him for treatment two and a half years prior to his death and that he was suffering from sirosis and kokas abdomin six months prior thereto. The said doctor in his affidavit has stated that the Life Assured had taken treatment at as many as six different hospitals and had also been treated by a number of doctors. Contending that the affidavit of Dr. Behra was based solely on his memory and there was no document or record of any medical report relating to the deceased/Life Assured, he contends that the State Commission ought to have disbelieved the contention of Dr. Behra. According to him, the District Forum had rightly held the affidavit and certificate of Dr. Behra as not worthy of credence. Had the Life Assured actually suffered from such serious diseases for over a period of three and a half years, as is attempted to be portrayed by the respondents/Life Insurance Corporation of India, Dr. Mehta, who medically examined the Life Assured, should have been, even on visual examination, able to find that the deceased/Life Assured was suffering from such diseases. Learned counsel, therefore, submits that the whole case of repudiation has been well orchestrated by the respondents/Life Insurance Corporation of India through their panel doctors, which the State Commission has wrongly relied upon. He has, therefore, submitted that the order passed by the State Commission being erroneous and therefore irregular be set aside and the order passed by the District Forum be restored.
On the other hand, by referring to page 22 of the paper-book, which is the Medical Examiners Confidential Report and in the concluding part of which it is stated that I hereby certify that I have, this day, examined the above life to be assured personally, in private, and recorded in my own hand (i) the true and correct findings, (ii) the answers to Question No. 4, as ascertained from the person examined, learned counsel for the respondents/Life Insurance Corporation of India has contended that the doctor goes by what the Life Assured states as the diseases in question cannot be suspected on visual examination. Had the Life Assured disclosed about his liver enlargement, they would have either subjected him to a thorough medical examination or in the alternative charged a different and higher premium for the policy. That the Life Assured suppressed the material fact is evident from the evidence of Dr. Behra, whom the deceased/Life Assured had approached for treatment.
He has further contended that it would be wrong to argue, as has been done by learned counsel for the petitioner/complainant, that Dr. Behra has given the details on the behest of respondents/Life Insurance Corporation of India. In fact it was the petitioner/complainant herself, who has got the claim form filled up from Dr. Behra, and his affidavit is in conformity with what was stated in the claim form. Learned counsel further submits that under Section 45 of the Insurance Act, the respondents/Life Insurance Corporation of India were entitled to investigate the claim within a period of two years of its inception and within that period the onus was on the petitioner/complainant to prove that there was no suppression of material fact. The petitioner/complainant in this case has failed to discharge this onus, as she has not preferred to cross-examine the doctors whose version now she call in question. He further contends that insurance is a contract based on the principle of utmost good faith i.e. uberrima fides and the petitioner/complainant in this case has committed a breach of this principle and the State Commission has very rightly held that the respondents/Life Insurance Corporation of India are not liable.
He, therefore, submits that there being no merit in the revision petition, the order of the State Commission need not be interfered with.
We have heard learned counsel for the parties and have also perused the records of the case. We must appreciate the manner and vehemence with which learned counsel for the petitioner/complainant has argued his case. He has tried his level best to persuade us to believe that the repudiation of the claim was not justified because the purpose behind an insurance is to subserve the social security and in this backdrop the State Commission has erroneously relied upon the evidence produced by the respondents/Life Insurance Corporation of India at a later stage only as an afterthought. When Dr. Mehta, the panel doctor, had certified that the Life Assured was not suffering from any serious ailments, there was no reason for him to later say that the Life Assured had not given him full information. Questioning the defence of learned counsel for the respondents/Life Insurance Corporation of India that the doctor had faithfully recorded whatever information was provided by the Life Assured, the counsel contends that it should not be taken on its face value as otherwise the respondents/Life Insurance Corporation of India could as well appoint any person other than a doctor to record such a statement. That the doctor on the panel examines a potential customer goes to show that the doctor is expected to examine the customer and is not expected to blindly endorse the statement made by the customer. While this argument may appear quite impressive, it has to be appreciated that insurance is a contract based on the principle of utmost good faith.
The policy not being that of a mediclaim policy, a customer is not subjected to thorough medical examination and the endorsement made by the doctor is mostly on the basis of the information provided by the customer, which is believed to be true. But if the subsequent inquiry/investigation reveal that some information has either been withheld or has been wrongly provided by the customer, the insurance company under the provisions of Section 45 of the Insurance Act would certainly be entitled to confront the insured and it would be then for the insured to rebut or controvert the information so gathered and supplied to him by the insurer. In this case, the petitioner/complainant has not preferred to cross-examine Dr. Mehta or Dr. Behra, who in their affidavits have contended that the Life Assured was suffering from two serious ailments years before he obtained the policy. Thus, the State Commission has rightly held that the insured has concealed the fact with regard to his suffering from two ailments and, therefore, the respondents/Life Insurance Corporation of India were not liable to honour the claim.
In this regard, a reference profitably can be made to the judgment of the Honble Apex Court in Life Insurance Corporation of India & Others Vs. Asha Goel (Smt.) & Anr. [(2001) SCC 160], wherein the Honble Apex Court has held as under:-
The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. 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 enquiry by a prudent person.
The facts of this case aptly fit in to the observation of the Honble Apex Court as the respondent/Life Insurance Corporation of India has taken due care and caution and have repudiated the claim only after proper assessment of the investigation into the past records of the deceased.
In view of the foregoing, no interference is called for in the revision petition. It is, accordingly, dismissed, however, with no order as to cost.
Sd/-
(B.N.P. SINGH) (PRESIDING MEMBER) Sd/-
(S.K. NAIK) MEMBER Mukesh/