State Consumer Disputes Redressal Commission
The Senior Divisional Manager vs Master Shaikh Ashraf @ Jafar on 22 October, 2008
1 F.A.No.: 562,563/2002
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 18.03.2002
Date of order : 22.10.2008
(1)
FIRST APPEAL NO.: 562 OF 2002
IN CONSUMER COMPLAINT No. 275 OF 1999
DISTRICT CONSUMER FORUM : AURANGABAD.
1. The Senior Divisional Manager,
Life Insurance corporation of India,
Jeevan Prakash, Adalat Road,
Aurangabad.
2. The Senior Zonal Officer,
Life Insurance Corporation of Idia,
Yogakshem, East Wing,
Jeevan Bima Marg, Mumbai.
Through, The Zonal Manager, ... Appellants
(Original respondents)
-VERSUS-
Master Shaikh Ashraf @ Jafar
S/o. Shaikh Riyaz Mohammad,
Through Sheikh Riyaz Mohammad
H.No.1-13-65/P, Himayat Nagar,
Aref Colony, Aurangabad. ... Respondent
(Org. Complainant)
(2)
FIRST APPEAL NO.: 563 OF 2002
IN CONSUMER COMPLAINT No. 276 OF 1999
DISTRICT CONSUMER FORUM : AURANGABAD.
1. The Senior Divisional Manager,
Life Insurance corporation of India,
Jeevan Prakash, Adalat Road,
Aurangabad.
2. The Senior Zonal Officer,
Life Insurance Corporation of India,
2 F.A.No.: 562,563/2002
Yogakshem, East Wing,
Jeevan Bima Marg, Mumbai.
Through, The Zonal Manager, ... Appellants
(Original respondents)
-VERSUS-
Master Shaikh Ashraf @ Jafar
S/o. Shaikh Riyaz Mohammad,
Through Sheikh Riyaz Mohammad
H.No.1-13-65/P, Himayat Nagar,
Aref Colony, Aurangabad. ... Respondent
(Org. Complainant)
Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.
Mrs. Uma S .Bora, Hon`ble Member.
Present: Adv. Shri. S.R. Malani, appeared on behalf of appellant in both the appeals.
None for the respondent.
::ORAL ORDER::
(Date:- 22-10-2008) Per Shri S.G.Deshmukh, Hon`ble Judicial Member
1. These two appeals have been filed by the Life Insurance Corporation of India against the common judgment and order dated 25.01.2002 passed by District Consumer Forum, Aurangabad in complaint case No.275/99 & 276/99.
2. The respondents/complainants case before the Forum is that Mrs. Sayeeda Qumar Sultana the mother of master Shaikh Asraf @ Jafer had obtained LIC policy under Fifteen Years Money Back Policy With Profits (with accident benefits) for sum assured Rs.50,000/-. Policy was to commence from 24.10.96 and was to mature on 24.10.2011. It is contended that she had filled up a proposal form dated 21.09.96 for the policy in question. It is contended that she had also obtained the LIC policy under endowment assurance policy with profit for sum assured Rs.25,000/- for the period 08.02.94 to 3 F.A.No.: 562,563/2002 08.02.2016. The proposal form was filled up on 24.02.94. It is contended that, the policy holder Sayeeda Qumar Sultana who was serving in P.W.D. died on 11.12.96. It is also contended that the endowment assurance policy which was taken on 08.02.94 was lapsed and the same was revived by the Sayeed Qumar Sultana on 15.11.96. Sayeeda Qumar died on 11.12.96. The respondent being the nominee preferred the claim before the appellant. The claim for both the policies was repudiated on the ground that deceased Sayeeda suppressed material particulars about her health, while submitting proposal form for the policy in question, and thus, the complainant approached the Forum by filing complaint No. 275 & 276/99.
3. The present appellant appeared before the Forum and resisted the claim on the ground that deceased Sayeeda Qumar Sultana had concealed material particulars while submitting the proposal form in both the policies. She did not disclose about her health and the leave availed on the health ground. They have rightly repudiated the claim.
4. The Forum below after going through the papers and hearing the parties allowed both the complaints and directed the appellant to pay Rs.50,000/- and Rs.25,000/- to the complainant within the period of one month, on failure the amount will carry 9% interest p.a. from the date of judgment. Forum also directed the appellant to pay Rs.500/- towards cost in each case to the complainant.
5. Being aggrieved by the said judgment and order LIC came in appeal.
6. As both the complaints have been disposed of by one common judgment and the issues involved in the both appeals are similar we propose to decide these two appeals by common judgment.
4 F.A.No.: 562,563/20027. Notices were issued to the appellant as well as the respondent in both the appeals. The learned counsel Shri. S.R. Malani, appeared on behalf of appellant in both the appeals. None appeared on behalf of respondent. The appellant was also directed to issue the notice by registered post; accordingly, appellant issued the notice. None appeared on behalf of respondent. We heard learned counsel Malani for the appellant. The learned counsel submitted that the Forum erred in observing that deceased availed leave for some other purpose showing the medical ground. The leaned counsel submitted that minor suppression of material fact could also adversely affect the decision. According to him the life assured had been hospitalized on two occasions it could not be said that the suppression of this fact is of minor nature. The leaned counsel submitted that, the evidence brought on record shows that, the deceased suppressed the material fact about health sickness and being on medical leave before purchase of the policies. The learned counsel also submitted that the cause of death had no relevance to the non-discloser of fact about health, at the time of purchase of the policy. The learned counsel relied on Life Insurance Corporation of India and Anr. Vs. Smt. Maya @ Mahamaya Mahableshwar Dessai reported in 2004 (3) ALL MR 251 (NC). He also relied on judgment and order dated 30.03.06, Smt.Prema and others vs. Life Insurance Corporation of India reported in legal digest of LIC. He also relied on judgment in LIC vs. Smt. Ayesha (NC) 21.09.2004.
8. We perused the papers and gave our anxious thoughts to the argument advanced by the learned counsel for the appellant, and citations relied by him. There is no dispute that, the deceased Sayeeda Qumar Sultana had obtained the policy under Fifteen Years Money Back Policy With Profit (with accident benefit) for sum assured Rs.50,000/- commencing from 24.10.96 to 24.10.2011, of which proposal was filled up on 21.09.96 and the policy under endowment assurance policy with profit for sum assured Rs.25,000/- of which 5 F.A.No.: 562,563/2002 proposal form was submitted on 24.02.94. It is also apparent that the life assured Sayeeda Qumar Sultana died on account of Acute Pulmonary Edema with Respiratory Arrest as the Primary Cause and Viral Encephalitis as the Secondary Cause. It is also apparent from the record which is brought by the appellant that, the deceased had availed following leave on medical ground.
SrNo PERIOD REASON
01. 06.12.1993 to10.12.1993 Cough cold and fever, A certificate
dated 10.12.1993 of Dr. Usha
Shroff.
02. 20.11.1995 to 02.12.1995 A certificate dated 02.12.1995 from
Dr. Asmat Hospital for Pyrexia
(Fever) of unknown origin.
03. 21.12.1995 to 30.12.1995 Certificate dated 30.12.1995
issued by Dr. Mohd. Mujeebuddin
for lumbago sciatic pain.
04. 20.02.1996 to 24.02.1996 Cert. Dtd. 25.2.96 from Tekwani
Maternity Nursing Home for
hospitalization forAcute Dysentery.
05. 04.06.1996to13.06.1996 Certificate dated 13.06.1996 from
Asmat Hospital for dysfunctional
Uterine hemorrhage with Cervical
Polyp and Severe Anemia.
9. It is the contention of the appellant that deceased suppressed material particulars about her health and also the medical leave availed by her before purchase of the policies, while submitting the proposal form of insurance policies. On perusal of papers it reveals that, the leave for the period 06.12.93 to 10.12.93 was obtained on the ground of cough, cold and fever. The leave for the period 20.11.95 to 02.12.95 was obtained on the ground of Pyrexia (fever) of unknown origin. Leave period 21.12.95 to 30.12.95 was obtained on the ground of lumbago sciatic pain, and the leave for the period 20.02.96 to 24.02.96 was obtained on the ground of Acute Dysentery, and the leave for the period 04.06.96 to 13.06.96 was obtained on the ground 6 F.A.No.: 562,563/2002 of dysfunctional Uterine Hemorrhage with Cervical Polyp and Severe Anemia.
10. Mere fact that the sick leave was obtained by the deceased by producing medical certificate can not lead to the conclusion that the deceased was suffering from serious ailment which would have reduced for her life span.
11. In Smt. Deepshri vs. LIC of India, reported in AIR 1985 Bombay pg.192. In the proposal form the deceased policy holder had stated that, the usual state of his health was good, that he had not consulted a Medical Practitioner within the last five years prior to the date of making the proposal and that she had not remained absent from work on ground of health during previous two years. The certificate issued by the employer of the deceased set out in detail, the ailments viz. influenza, dysentery, bleeding piles and fever suffered by the deceased before taking the policy and the sick leave secured by him from his office on production of medical certificate. The Life Insurance Corporation relying on the said certificate claimed that the statements made by the deceased in the proposal form were fraudulent suppression of material facts. The policy was therefore repudiated. Hon'ble Bombay High Court held "that, the mere failure to disclose in the proposal form the trivial ailments like influenza, decentery, bleeding piles and fever on some occasions cannot be construed as fraudulent suppression of material facts. Therefore, the second para of S. 45 was not attracted to the facts of the present case. The action of the Corporation in concluding from certificate that the deceased was suffering from serious ailments and thereby repudiating the contract was wholly illegal."
The Hon'ble High Court also observed that, the medical certificates are required to be produced before employer in accordance with service conditions and the mere fact that it was produced for obtaining sick-leave can not lead to the conclusion that deceased 7 F.A.No.: 562,563/2002 taken treatment from a Medical Practitioner. It was not necessary to disclose such trivial ailments. What is required to be disclosed in the proposal form is a serious ailment and not each and every petty ailment. It is also observed "that medical practitioner on the panel of the Corporation had examined him and therefore, it can not be claimed that the deceased was suffering from serious ailment."
12. In the instant case the certificate issued by the employer of the deceased set out in detail ailment viz. cough, cold and fever, Pyrexia (fever), lumbago sciatic pain, acute decentery, dysfunctional Uterine hemorrhage with Cervical Polyp and Severe Anemia. For securing the leave medical certificates are required to be produced before the employer in accordance with service conditions and mere fact that the medical certificates were produced for obtaining sick leave can not lead to the conclusion that deceased have taken treatment from medical practitioner. No affidavits of the doctors whose certificates have been brought on record are filed by the appellant. As per ratio in Smt. Dipashri case (Supra) what is required to be disclosed in proposal form is a serious ailment and not each and every petty ailment. It reveals from the judgment of Forum that, the appellant had availed leave for some other purpose but on medical ground as it was convenient to her to take leave on production of medical certificate but she was not suffering from any disease.
13. In LIC & others vs. Asha Goal and Anr. AIR 2001 S.C. 549. Hon'ble Apex Court held that, Insurance Act (4 of 1938) S.45--Life Insurance Corporation Act (31 of 1956) S. 303--Repudiation of claim by insured-- Merely on grounds that deceased had withheld correct information regarding his health at time of effecting insurance with corporation--Not proper--Matter of repudiation of policy should not be dealt with in a 8 F.A.No.: 562,563/2002 mechanical and routine manner but should be one of extreme care and caution.
14. In LIC vs. Smt. Teja Ben Kananbhai Patel reported in 2007 (I) CPR pg. 248 (NC). The Hon'ble National Commission held that, "the hospitalization for fever, rigour pain in throat and difficulty in swallowing eight month before death of insured due to heart attack could not be said to be suppression of material fact by insured so as to disentitle to claim under Life Insurance Policy."
15. In Smt. Alia Begum Vs. LIC reported in 1997 (III) CPR- 60 (NC), The Hon'ble National Commission has held "that, in order to discharge its owns it was for insurance company to place material on the record to show that the deceased suppressed the facts which it was material to disclose, whether a fact is material depends upon the circumstances of a particular case. The test to determine materiality is whether the fact has any bearing on the risk under taken by the insurer. If the fact has any bearing on the risk it is a material fact, if not it is immaterial."
16. In LIC vs. Nishar Khan decided on 08.03.2006 reported in 2006 NCJ 713 (NC). The Hon'ble National Commission held that, Life Insurance - Claim for - Allowed - Sustainability of - Appreciation of evidence - Death due to rupture of appendicitis - Repudiation on the ground that fact of pregnancy not shown - Consideration of - Held - No nexus between cause of death and alleged pregnancy - Repudiation unjustified - Dismissed revision petition.
17. In the instant case we have mentioned that the leave was obtained by the deceased on ground of petty ailment and thus mere fact that certificates are produced for obtaining sick leave can not lead the conclusion that the deceased had taken treatment from medical practitioner. It was not necessary for her to disclose such a trivial 9 F.A.No.: 562,563/2002 ailment. The grounds mentioned for obtaining leave were trivial ailment. Serious ailments are required to be disclosed in the proposal form and not each and every trivial ailment. We have also mentioned that the complainant field the affidavit stating that deceased had availed leave for some other purpose showing the medical ground as it was convenient to her to secure the leave on medical ground. The Forum below has considered all these aspects in right perspective and rightly allowed both the complaints. We are not inclined to interfere the order in both the complaints. We pass the following order.
-::ORDER::-
1. Both appeals are dismissed.
2. No order as to cost.
3. Copies of the order be furnished to the parties.
(Mrs. Uma S. Bora) (S. G. Deshmukh )
Member Presiding Judicial Member
Kalyankar