State Consumer Disputes Redressal Commission
Lic Of India vs Smt. Suresh Kumar & Ors. on 18 July, 2008
H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA, CAMP AT NAHAN.
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FIRST
APPEAL NO.466/2007.
DATE
OF DECISION: 18.7.2008.
1.
Life
Insurance Corporation of India,
through its Divisional Manager, L.I.C. Shimla.
2.
Life
Insurance Corporation of India Branch at Nahan
through Branch Manager.
Appellants.
Versus
1.
Smt.
Suresh Kumari Wd/O late Sh. Ram Kumar, village Jhron,
P.O. Kala Amb, Tehsil Nahan, District Sirmour, H.P.
2.
Nikhil
Kumar aged 7 years
3.
Shivani
aged 6 years.
4.
Vandana
aged 2 years,
( Minors son and daughters of late Sh. Ram Kumar,
all 2-4
through their legal guardian/next friend mother
Smt.Suresh Kumari
R/O Vill. Jhron Kala Amb, Tehsil Nahan, Sirmour,
H.P.
Respondents.
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Honble Mr. Justice Arun Kumar Goel,
President.
Honble Mrs. Saroj Sharma, Member.
Whether approved for reporting? Yes.
For the Appellants: Mr. V.R. Chauhan, Advocate.
For the Respondents: Mr. Amit Attri, Advocate.
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O R A L Justice Arun Kumar Goel, President.
1. Complaint No.112/2006 filed by the respondents against the appellants has been allowed on 12.7.2007. By means of impugned order, appellants have been directed to pay Rs.1,00,000/- with interest @ 9% per annum from the date of filing of the complaint i.e. 23.11.2006 till realization, alongwith litigation cost of Rs.2,000/-. Hence this appeal.
2. Facts regarding deceased, Ram Kumar, being insured in the sum of Rs.1,00,000/- vide proposal dated 21.12.2002, Annexure R.1, followed by Insurance policy, Annexure R.II, whereunder the date of its commencement was 28.3.2003, are not in dispute. Policy in question was for 15 years, Jeevan Surbhi policy with profits + acc. benefit. This policy lapsed in the month of September, 2003, and was got revived when proposal dated 11.5.2004 was filled-in by the appellants. We may notice in the context of revival that there is a declaration signed by Dr. Peter Desouza of Nahan. Its relevance and context will be dealt with hereinafter.
3. After the claim had been repudiated by the appellants vide Annexure R.VIII dated 24.8.2006, it resulted in filing of the complaint by the respondent. Basis for repudiating the claim was that the deceased had been under treatment with P.G.I., Chandigarh from 19.11.2003 to 5.12.2003 and 10.12.2003 to 4.2.2004 for Restrictive Cardiomyopathy before the revival of the policy, but these facts were not disclosed in his personal statement.
This was deliberate mis-statement.
That was withheld and material withholding of information from the appellants regarding health of the deceased by him when he got the policy revived. Consequently while repudiating the claim, policy was declared as null and void and thus all moneys paid towards the revival of the policy and subsequent thereto belonged to them i.e. the appellants, and nothing was payable as claimed.
4. While contesting the claim before the District Forum below, this was the basis and at the time of hearing of this appeal, Mr. Chauhan, learned Counsel for the appellants reiterated these grounds with the prayer that the District Forum below fell into error in ignoring these material facts which were supported by documents placed by his client on the record.
Great emphasis was laid by him on Annexure R.V, O.P.D ticket of the deceased from Nehru Hospital, Postgraduate Institute of Medical Education and Research, Chandigarh, as well as on Annexure VII, Form No.3816, purported to have been filled-in by the Senior Resident, Department of Cardiology, P.G.I., Chandigarh. Thus, he prayed for allowing the appeal and consequently dismissing the complaint of the respondents with heavy costs. All these pleas have been seriously contested by Mr. Attri, learned Counsel for the respondents. According to him, firstly there was no suppression of any material fact, and even if it be assumed for the sake of argument without conceding, even then the impugned order calls for no interference. In this behalf, reference was made by Mr. Attri to the provisions of Insurance Act and also to the non filing of the affidavit of the doctor who purports to have filled-in and signed Annexure R.VII. He thus prayed for dismissing this appeal with costs.
5. We are alive to the situation that contract of insurance is like any other contract under the Contract Act. At the same time if fraud is established by legally acceptable as well as reliable evidence, the contract would stand vitiated/non-est. This is the cardinal principle under the law of contract. Now we shall examine the present case as to whether any fraud is made out on the basis of the evidence on record or not. If we accept the submission of Mr. Chauhan, this appeal has to be allowed, otherwise consequences are obvious. In the context of the present case when reference is made to Annexure R.IV, the proposal form, filled-in at the time of revival of the policy, we find that it is signed by doctor Peter Desouza. We are unable to understand as to what was the purpose of getting the proposal form signed by the doctor. If it was meant to certify what was stated in the proposal form to be correct, it could have been got certified from anyone in the office of the appellants. In these circumstances, we are of the view that no doubt doctor has certified that the statements contained in the proposal form at the time of revival on 11.5.2004, were made before him by Ram Kumar. However, we are constrained to hold in this behalf that the purpose of getting it certified from the doctor was to have ascertained the state of health of the deceased, otherwise according to us mere certification is totally redundant besides being irrelevant and of no consequence. We specifically asked Mr. Chauhan the purpose of the certificate of the doctor.
Explanation put forth by him was that whatever was stated by the proposer was made before the doctor.
As already observed, it could have been made before anyone even in the office of the appellants. This reinforces our view that after being satisfied about the state of health, doctor Dr. Peter Desouza had then put his signatures.
6. In this context we are further of the view that the obtaining of signatures of doctor whether at the time of initial policy or at the time of its revival thereafter is not a mere ritual and/or meant to oblige the doctor who certifies the form.
According to us the object behind such certification appears to be that the insured at both stages was in a fit state of health. Faced with this situation, Mr. Chauhan laid emphasis on the OPD ticket of the deceased, Annexure R.V, and Form No.3816, Annexure R.VII. Submissions based on these two documents also merit rejection.
Reason being that every suppression or withholding of material information per-se would not in law tantamounts to fraud. And as already observed, fraud is a question of fact which needs to be established by leading cogent and reliable evidence. Only after it is established, further question would arise as to whether the contract is vitiated or not.
27. In this behalf Section 45 of the Insurance Act, 1938 also assumes significance. Mere suppression by itself would not vitiate either the initial contract of insurance or subsequent one after revival of lapsed policy unless it is also established simultaneously that suppression/withholding of material information was fraudulent as well. We are unable to find such evidence from the complaint file and none could be pointed out by Mr. Chauhan. Though he again persisted with vehemence that in the face of Annexure R.V and R.VII, complaint could not have been allowed. So far Annexure R.VII, Form No.3816 is concerned, we may clarify that with a view to take advantage thereof as also of the OPD ticket, minimum that was expected of the appellants to have filed affidavit of the doctor concerned and in case he refused to do so, to have summoned him through the process of law. There is nothing on record to that effect. Once this conclusion is arrived at, then the submission of Mr. Chauhan that the revival being fraudulent, therefore, contract of insurance on its revival became void, needs rejection. Ordered accordingly. In the matter of contract of insurance, we are further alive to the situation that it is a contingent contract because benefit accrues on the happening of incident, death in case of life assured as is the situation in the present case.
However, since we have held as a question of fact that no fraud is established, therefore, the appellants were not justified while repudiating the claim vide Annexure R,.VIII dated 24.8.2006 by declaring the policy null and void and further retaining the entire money paid to the them so far policy was concerned.
8. No other point was urged.
In view of the aforesaid discussion, this appeal has no merit which is accordingly dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Office is directed to send a copy of this order to Shri Navlesh Verma, Advocate, learned Counsel who had filed this appeal and at the same time send a certified copy to Smt.Suresh Kumari, mother and natural guardian of respondents 2 to 4 through whom the latter had filed the complaint free of cost as per Rules.
Nahan, July 18, 2008.
(
Justice Arun Kumar Goel ) (Retd.)
President
( Saroj Sharma )
/BS/ Member