National Consumer Disputes Redressal
Life Insurance Corporation Of India vs Kulwant Kumari on 1 May, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 485 OF 2006 (From the Order dated 09.11.2005 in First Appeal No. 1337/2005 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) LIFE INSURANCE CORPORATION OF INDIA PETITIONER VERSUS KULWANT KUMARI RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR THE PETITIONER : MR. ASHOK KASHYAP, ADVOCATE. FOR THE RESPONDENT : MR. D.K. SHARMA, ADVOCATE. PRONOUNCED ON : 01.05.2009 O R D E R
ASHOK BHAN J., PRESIDENT Life Insurance Corporation of India-petitioner herein, who was the Opposite Party before the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred to as the District Forum for short) has filed this Revision Petition against the Order of the State Consumer Disputes Redressal Commission, Chandigarh, Punjab (hereinafter referred to as the State Commission for short) in First Appeal No. 1337 of 2005. By the impugned Order, State Commission has upheld the Order of the District Forum.
Shortly stated, the facts of the case are: -
Shri Kailash Chander (since deceased) got himself insured with the petitioner-Corporation in the sum of Rs.1,00,000/- on 09.04.2000. The Policy had lapsed because of non-payment of premium. On payment of due premium and other dues, the Policy was revived on 07.05.2002. Kailash Chander died of heart failure on 04.04.2003. The complainant-respondent herein, widow of Kailash Chander, being the nominee under the Policy, lodged the complaint before the petitioner-Corporation which was repudiated on the ground that the deceased was suffering from Diabetic Mellitus two years before the date of revival and that he was getting treatment for the same for the last two years prior to the revival of the Policy.
On receipt of the letter of repudiation dated 13.09.2003, respondent filed a complaint before the District Forum challenging the repudiation of the claim and seeking a direction to the petitioner-Corporation that the complainant should be paid the insured amount.
District Forum, after appreciating the evidence produced by the parties, allowed the complaint in the following terms:-
14. As such repudiation of the claim was unjustified and repudiation amounts to deficiency of service. As such we allow the complaint for recovery of insured amount with 8% interest from the date of filing of the complaint till payment. Interest would serve as compensation.
Complainant is further awarded Rs.5000/- as costs of litigation expenses. Compliance of the order be made within one month from the receipt of the copy of this order. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.
Being aggrieved, the petitioner filed an Appeal before the State Commission, which has been dismissed by the impugned Order.
Shri Ashok Kashyap, learned Counsel appearing for the petitioner, submitted that the declaration given by the deceased, at the time of getting the Policy revived on 07.05.2002, regarding his state of health, was incorrect. Following were the questions and the answers given at the time of revival of the Policy: -
QUESTIONS ANSWERS
a) Have you ever suffered from any illness/ No disease requiring treatment for a week or more?
b) Did you ever have any operation/accident No or injury?
c) Did you ever undergo ECG, X-Ray, Screening, No Blood, urine or stool examination?
d) Are you at present in sound health? Good It is not disputed before us that the Policy was not repudiated on the ground that at the time when initial Policy was taken, there was any misrepresentation or intentional concealment of facts by the deceased-insured. In the present case, two years have elapsed after the issuance of the Policy and the burden to prove that the deceased had concealed the facts was on the Insurance Company in terms of Section 45 of the Life Insurance Act, 1938. It was then submitted by Shri Kashyap that revival of the Policy constituted a new contract between the parties and two years have to be counted from the date of revival of Policy. This submission cannot be accepted in view of the Judgment of the Honble Supreme Court of India in Mithoolal Nayak v. Life Insurance Corporation of India reported in [AIR 1962 Supreme Court 814] in which the Honble Supreme Court of India has clearly held that for the purposes of Section 45 of the Life Insurance Act, 1938, the period of two years has to be counted from the date on which the Policy was originally effected and not from the date of the revival of the Policy. In para 7 of the Mithoolal Nayaks case (supra), Honble Supreme Court of India, observed as under:-
7. We shall presently consider the evidence, but it may be advantageous to read first s. 45 of the Insurance Act, 1938, as it stood at the relevant time. The section, so far as it is relevant for our purpose, is in these terms:
"No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.
It would be noticed that the operating part of S.45 states in effect (so far as it is relevant for our purpose) that no policy of life insurance effected after the coming into force of the Act shall, after the expiry of two years from the date on which it was effected, be called I question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was, inaccurate or false; the second part of the section is in the nature of a proviso which creates an exception. It says in effect that if the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose, then the insurer can call in question the policy effected as a result of such inaccurate or false statement. In the case before us the policy was issued on March 18, 1945 and it was to come into effect from January 15, 1945. The amount insured was payable after January 15, 1968 or at the death of the insured, if earlier. The respondent company repudiated the claim by its letter dated October 10, 1947. Obviously, therefore, two years had expired from the date on which the policy was effected. We are clearly of the opinion that S.45 of the Insurance Act applies in the present case in view of the clear terms in which the section is worded, though learned counsel for the respondent company sought, at one stage, to argue that the revival of the policy some time in July, 1946 constituted in law a new contract between the parties and if two years were to be counted from July, 1946, then the period of two years had not expired from the date of the revival. Whether the revival of a lapsed policy constitutes a new contract or not for other purposes, it is clear from the wording of the operative part of S. 45 that the period of two years for the purpose of the section has to be calculated from the date on which the policy was originally effected; in the present case, this can only mean the date on which the policy (Ex.P-2) was effected. From that date a period of two years had clearly expired when the respondent company repudiated the claim. As we thin that S. 45 of the Insurance Act applies in the present case, we are relieved of the task of examining the legal position that would follow as a result of inaccurate statements made by the insured in the proposal form or the personal statement etc. in a case where S. 45 does not apply and where the averments made in the proposal form and in the personal statement are made the basis of the contract.
(Emphasis supplied) Relying upon the certificate-Exhibit-0-3/B given by Dr. Rajesh Sharma, it was then contended by the learned Counsel for the petitioner that the deceased was an old patient of diabetes and was taking medicine from him for the said disease before the start of the original Policy which clearly shows that the deceased was suffering from the disease prior to the taking of the original Policy in the year 2000. Similar plea raised before the District Forum was rejected by the District Forum by observing as under: -
11. After hearing the counsel for the parties and having gone through the facts of the case, we hold that the main dispute in the present case is that whether the certificate Ex.0-3/B given by Dr. Rajesh Sharma is positive proof that insured Kailash Chander was old patient of diabetic and was taking medicines from him for such disease before the start of original policy according to such affidavit Rajesh Sharma had not stated in his affidavit that Kailash Chander was known to him personally nor he has mentioned the name of medicines given to such patient in his treatment nor Dr. Rajesh Sharma has mentioned that Kailash Chander was coming to him for monthly check up. He has only mentioned that said patient was taking medicines for last two years before his death, which was occurred on 4.4.2003. Apart from this affidavit Ex. 0-3/B, there is no other evidence produced by the Insurance Company nor the affidavit accompanying by treatment that whether Kailash Chander was ever outdoor patient and he coming per week or per month for check up. Dr. Rajesh Sharma was merely B.A.M.S. and was neither qualified to give Allopathic medicines nor he has mentioned any Allopathic or Ayurvedic medicines given by him to Kailash Chander assured.
This finding of the District Forum has been upheld by the State Commission. The above noted finding of the District Forum, duly endorsed by the State Commission, is a finding of fact, which cannot be interfered in exercise of the revisional jurisdiction under Section 21 of the Consumer Protection Act, 1986. Under Section 21, this Commission can interfere with the finding recorded by the State Commission where it appears to this Commission that such State Commission has exercised a 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 illegally or with material irregularity. In the present case, there is no illegality or material irregularity in the Order passed by the State Commission.
Otherwise also, we agree with the finding recorded by the Foras below that Dr. Rajesh Sharma, being a B.A.M.S. was neither qualified to give Allopathic medicines nor does he say in his affidavit that he had given any Ayurvedic medicine to the deceased Kailash Chander for the treatment of diabetes. Dr. Rajesh Sharma has filed his affidavit in support of a certificate to the effect that the deceased was a known patient of Diabetic Mellitus taking medicines regularly before the date of death but he does not say that he had given the medicine. Such type of certificate or affidavit cannot be relied upon in any case as such type of certificate do not conclusively prove that the deceased was suffering from diabetes, which could have resulted in heart failure.
For the reasons stated above, we do not find any merit in this Revision Petition and dismiss the same. No costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER REVISION PETITION NO.
485 OF 2006 (From the Order dated 09.11.2005 in First Appeal No. 1337/2005 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) LIFE INSURANCE CORPORATION OF INDIA PETITIONER VERSUS KULWANT KUMARI RESPONDENT Draft Order in the above matter is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement.
(ASHOK BHAN J.) President 30.04.2009 Honble Mr. B.K. Taimni, Member