State Consumer Disputes Redressal Commission
Mst.Gulshan Rani vs Lic Of India on 3 February, 2010
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR. APPEAL NO: 1368/2008 Mst.Gulshan Rani w/o late Sh.Vinod Kumar r/o 20- H/A Block Gumber, Sriganganagar Distt. Sriganganagar. Complainant-appellant Vs. 1. Life Insurance Corporation of India, Divisional Office, Bikaner through its Divisional Manager. 2. Life Insurance Corporation of India, through its Br.Manager, Near Katewa Petrol Pump, Hanumangarh Junction. Opposite parties-respondents 3.2.2010 Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sashi Kumar Pareek- Member Mr.Jitendra Mitruka counsel for the appellant Mr.J.K.Dhingra counsel for the respondents 2 JUDGMENT
BY THE STATE COMMISSION ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT) This appeal has been filed by the complainant appellant against order dated 1.7.08 passed by the District Forum, Hanumangarh in complaint no. 61/2005 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint before the District Forum,Hanumangarh on 5.5.05 inter alia stating that her husband Vinod Kumar, now deceased was in the service of Panchayat Samitti, Sriganganagar and he had taken LIC policy from the respondents for a sum of Rs.10 lacs bearing policy no.501216399 on 28.10.02 and the policy was for 20 years . It was further stated in the complaint that the deceased had died on 25.2.04 and after the death of the deceased claim was preferred by the complainant respondent being the wife and nominee of the deceased before the office of the respondents but that claim was repudiated by the respondents through letter dated 31.3.05 on the ground that at the time of taking the policy on 28.10.02, the deceased had filled in up a declartion form regarding his health on in which he 3 had not mentioned that he was suffering from any kind of disease but they had the sufficient proof to prove the fact that prior to ten years before 28.10.02 the deceased had undergone for operation of Tonsillectomy and since these facts were not disclosed by the deceased in his declaration form on 28.10.02 at the time of taking the policy, therefore, the deceased was guilty of suppression of material facts regarding his health. Thereafter the present complaint was filed.
A reply was filed by the respondents before the District Forum on 5.7.05 and in the reply they have taken the same pleas which were taken by them in the repudiation letter dated 31.3.05 . Apart from that it was stated in the reply that when a question was put on point whether he had gone for any surgery or not at the time of filling in up the declaration form regarding his health on 28.10.02 and he had replied the question in negative, and further the deceased was got admitted in the SMS Hospital, Jaipur for the period 10.5.03 to 19.5.03 and from 20.11.03 to 16.12.03 and in the bed head ticket of the SMS Hospital, Jaipur when the deceased was admitted in that hospital for the period 10.5.03 to 19.5.03, in the column of past history it was mentioned that c/o dyspnoea- 4 months c/o palpitation/ syncope, history of tonsillectomy- 10 years back and therefore it was a case of suppression of material facts regarding health on the part of the deceased and thus the fact that before taking the policy the deceased was a 4 patient of Tonsillectomy is well established and it was prayed that complaint of the complainant be dismissed as claim of the complainant was rightly repudiated by the respondents.
Note- It may be stated here that previous to that this complaint was dismissed by the majority order dated 10.10.05 by the District Forum, Hanumangarh on the ground that the question involved in this case could be decided by the Civil Court and against that order dated 10.10.05, an appeal was preferred by the complainant appellant before this Commission bearing no. 1873/05 which was decided by this Commission through judgment dated 23.8.07 by which the order dated 10.10.05 was set aside and the matter was remanded back to the District Forum, Hanumangarh to decide the complaint on merits in accordance with law and thereafter this complaint was again decided by the District Forum,Hanumangarh through impugned order dated 1.7.08 and had dismissed the complaint inter alia holding-
(i) That in this case since before filing in up the declaration form on 28.10.02 the deceased had undergone for operation of Tonsillectomy and since this fact was not disclosed by the deceased in his declartion form dated 28.10.02 , therefore, it was a case of suppression of material facts regarding health on the part of the deceased 5
(ii) That the respondents were justified in repudiating the claim of the complainant appellant.
Aggrieved from the said order dated 1.7.08 passed by the District Forum, Hanumangarh this appeal has been filed by the complainant appellant.
3. In this appeal, the main contention of the learned counsel for the appellant complainant is that repudiation of claim of the complainant appellant by the respondents on the ground of suppression of disease Tonsillectomy cannot be justified as there is nothing on record to show that at the time of filling in up the declaration form on 28.10.02, the deceased was suffering from the disease of Tonsillectomy and apart from this, the deceased had died due to heart trouble and not due to the disease of Tonsillectomy and there is no nexus with the cause of death of the deceased and Tonsillectomy and hence, repudiation of claim of the complainant appellant by the respondents was wholly illegal and arbitrary and in view of this the findings of the District Forum dismissing the complaint of the complainant appellant could not be sustained as they suffer from basic infirmity, illegality and perversity and it was prayed that appeal be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellant as 6 well as for the respondents and have gone through the entire materials available on record.
6. There is no dispute on the point that the deceased had taken LIC policy from the respondents for a sum of Rs.10 lacs bearing policy no.501216399 on 28.10.02.
7. There is also no dispute on the point that at the time of taking the policy a declaration was made by the deceased and in that declaration on 28.10.02 , he had not mentioned that he was suffering from any kind of disease .
8. There is also no dispute on the point that deceased had died on 25.2.04 due to heart trouble meaning thereby within two years of the issuance of the policy.
9. There is no dispute on the point that the claim of the above mentioned policy was repudiated by the respondents through letter dated 31.3.05 on the grounds mentioned therein.
10. From the record which has been produced by the respondents it appears that the deceased was got admitted in the Sri Govindam Hospital, Sriganganagar on 19.11.03 for taking the treatment of heart trouble.
Note- It is clarified here that the deceased was admitted in Sri Govindam Hospital, Sriganganagar on 19.11.03 and not on 19.11.02 and some confusion has been made for that date 7 and this has been clarified by the doctors of Sri Govindam Hospital on a certificate in form no. 3816 issued by the respondents LIC.
11. On file there is Admission and Discharge record of the SMS Hospital, Jaipur which shows that the deceased was admitted in that hospital on 10.5.03 and was discharged on 19.5.03 and some trouble in the valve of heart was diagnosed.
Note-
On page 2 in the column of past history of the bed head ticket it was mentioned that c/o dyspnoea- 4 months c/o palpitation/ syncope, history of tonsillectomy- 10 years back.
12. On file there is another bed head ticket of the SMS Hospital, Jaipur which shows that the deceased was again admitted in SMS Hospital, Jaipur on 20.11.03 and he was discharged on 16.12.03 and the deceased had taken the treatment of heart.
13. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
14. In this case there is nothing on record to show that the deceased had ever taken treatment from any hospital in respect 8 of Tonsillectomy prior to 28.10.02 the date on which the declaration form was filled in up by the deceased. Not only this there is nothing on record to show that prior to 28.10.02 the deceased was ever admitted in any hospital for taking the treatment. The only evidence against the deceased in respect of the treatment is found in the bed head ticket of the SMS Hospital, Jaipur when the deceased was admitted on 10.5.03 and in the past history it was mentioned that Tonsillectomy 10 years back.
15. It may be stated here that the past history recorded in the bed head ticket of the hospital could not be treated as primary piece of evidence to prove any fact unless and until the doctor who had recorded that history had been produced and primary evidence would be of the doctor who had recorded the information in the bed head ticket. For that law laid down in the case of LIC Vs. Dr. P.S.Agarwal reported in NCJ 2005 181 (NC) may be referred to.
16. In this case the doctor who had recorded the past history had not been produced and,therefore, no reliance could be placed on past history recorded in the bed head ticket.
17. Since in the present case there is no documentary proof or evidence available on record to show that the deceased was admitted in any hospital for taking the treatment of Tonsillectomy prior to filling in up the declaration form on 28.10.02 , it could not be said that the deceased was guilty of suppression of material facts about his health. No doubt in the 9 bed head ticket of the SMS Hospital, Jaipur it was mentioned that Tonsillectomy 10 years back but to corroborate to prove that entry, no documentary proof or evidence or material has been produced by the appellant showing that the deceased had earlier taken the treatment of Tonsillectomy in any hospital.
18. Apart from that there are certain diseases such as kidney, heart and brain and they are connected with the life span of a person and if any misstatement is made in respect of such type of diseases by the person seeking insurance, in such case it can be believed that knowingly the person taking out the insurance has made misstatement. But if any one suffers from temporary illness such as fever, cought cold etc., and the same was not mentioned at the time of taking insurance, it cannot be said in true sense that a misstatement in respect of the state of health has been made by the person seeking insurance.
19. Apart from this, even for the sake of argument that the deceased had undergone for operation of Tonsillectomy ten years before taking the policy in question, the death of the deceased having not been connected with the Tonsillectomy, and when it was not connected, it could not be considered to be material so far as death of the deceased is concerned. Consequently, it could not be said that there was suppression of material facts on the part of the deceased.
20. Further whether a fact is material or not has to be decided in the light of an in the context of the cause of death.
10If the fact has bearing on the cause of death, it would become material, otherwise it could not be said to be material. Mere incorrect or wrong answer to questions which ultimately do not have any bearing or connection with the death of the insured would not absolve the corporation from its liability under the policy. Therefore, even if the deceased was suffering from Tonsillectomy ten years before taking the policy in question as alleged by the respondents, judging it from the point of view of the cause of death of the deceased, it was not material and the respondents could not escape from its liability on the ground of suppression of material facts regarding health on the part of the deceased.
Note- It may be stated here that prior to taking the policy in question the deceased had taken two other policies and in respect of these two policies the payment had been made by the respondents and in the proposal form which was filled in up by the deceased for taking the policy in question, the fact of earlier policies were mentioned in column no. 9 of the proposal form.
21. For the reasons stated above, the respondents were not justified in repudiating the claim of the complainant appellant on the ground of suppression of material facts and the respondents have repudiated the claim of the complainant appellant without any basis and on wrong assumption and in an arbitrary manner and in view of this, the findings of the District Forum dismissing the complaint of the complainant appellant could not be sustained as they suffer from basic 11 infirmity, illegality and perversity. Hence, this appeal deserves to be allowed and the impugned order is liable to be quashed and set aside and the appellant complainant is entitled to get claim amount of Rs.10 lacs under the policy in question of the deceased alongwith interest @ 9% p.a. from the date of filing of the complaint.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 1.7.08 passed by the District Forum,Hanumangarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 10 lacs as claim amount under the policy in question of deceased alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.5000/- as amount of costs to the complainant appellant.
(S.K.Pareek) (Vimla Sethia) (Justice Sunil Kumar Garg) Member Member President N.M.