21-04-2015 - The reasons for delay in disposal of this appeal can be seen from the order sheet.

This matter has been remanded by order dated 30.1.2014 passed in Revision Petition No.1353/2013 by the Hon’ble National Commission.

2. Mr. Sachin Kumar, learned counsel appearing for the O.P.-appellant-(LIC for short) referring to the petition for condoning the delay, submitted that the delay of about 17 days occurred due to the following reasons. No free copy of the impugned order dated 7.12.2010 was received. However, application for obtaining it’s certified copy was made on 8.12.2010 which was prepared on 13.12.2010. Then it was received by learned counsel at Dhanbad and was sent to the Divisional Office of LIC at Hazaribagh, where it was received on 21.12.2010.Thereafter decision was taken to file this appeal and the file was sent to Zonal office on 10.1.2011 and it returned on 25.1.2011 with the permission to file the appeal. Thereafter the bank draft was prepared for deposit of statutory amount on 28.1.2011 and this was filed on 29.1.2011.

     He also submitted that no objection has been filed to the prayer for condoning the delay.

3. On the other hand, Mr. Chandrajit Mukherjee, learned counsel appearing for the complainant/respondent submitted that he has got no serious objection to the condonation of the delay, but the matter may be reheard on merit after condoning the delay as per the order of remand, specially in view of the documents procured under RTI Act by the letter dated 30.4.2013 issued by the LIC.

4. On being satisfied with the said grounds, the delay of 17 days in filing this appeal is condoned.

5. According to the complainant his wife took a policy on 8.11.2005 under ‘Jeevan Anand (With profits) (With Benefit) Accidental Policy for Rs. 5 Lakhs form LIC with the yearly premium of Rs. 41,930/-. His wife suddenly fell ill and died on 19.11.2008 due to “Cardio Respiratory Failure.” He intimated the LIC and lodged his insurance claim but it was repudiated by letter dated 29.1.2010 against which he preferred appeal before the Zonal Office of LIC vide letter dated 4.3.2010 but as nothing was done, he filed complaint petition on 25.5.2010. According to him -“all detail information was given except that my wife was suffering from diabetes and got treatment at Vellore Hospital in the year, 2005 before taking the policy but it is also clear that she must have been examined by the Doctor of the Opposite Party, when the policy was taken”.

6. According to the   LIC, the policy is issued under utmost good faith but there was concealment of material facts by the insured that she was suffering from ‘Diabetes Mellitas II’ and other ailments for which she took treatment at Vellore Hospital in July 2005, when the proposal for the policy was filed on 31.10.2005. It was revived also on 13.5.2009 but she again suppressed the said material facts. Further she died within a period of 6 months from the revival of the policy and it was categorized as early death claim.

7. The learned District Forum allowed the complaint. It interalia held that the policy was taken in the year 2005 and it continued till 2008. It further held that the wife of the Complainant must have been examined by the Doctor of LIC but such report has not been brought on record by LIC. As per the complainant his wife died due to falling and subsequently due to ‘Cardio Respiratory Failure’ which was not due to diabetes. The learned District Forum thus held that there was deficiency in service on the part of the LIC. It  directed LIC  to  pay the death claim of Rs. 5 Lakhs to the complainant with admissible bonus, if any,  within 30 days of the judgement  with token litigation cost of Rs.500/-

8. The LIC filed present appeal against the said order which was allowed after hearing the parties by judgement dated 14^th December 2012.

9. Against such judgement the complainant preferred the said R.P. No. 1353/2013 which was disposed of on 30.1.2014 setting aside the said judgement for deciding the application for condonation of delay first and then, if required, decide appeal on merits.

10. Mr. Sachin Kumar, referred to the discharge summary dated 4.8.2005 of Vellore Hospital to show that the insured was admitted on 22.7.2005 for treatment of Type 2 Diabetes Mellitus and other diseases. He then referred to the proposal form furnished by the insured on 31.10.2005 and submitted that she answered “no” against the questions put in clauses 11 (a) (b) and (c),- i.e. whether during the last 5 years she consulted a medical practitioner for any ailment requiring treatment for more than week; whether she had ever been admitted to any hospital or nursing home for general checkup, observation, treatment or  operation; whether she was suffering from or had ever suffered from Diabetes ,…… High Blood Pressure ….., Hernia or any other disease ? He, therefore submitted that it was clear that she suppressed the material facts of her admission and treatment in Vellore Hospital for more than a week just within three months preceding the submission of proposal form, for treatment of Diabetes, High Blood Pressure, Hernia and other diseases and therefore LIC rightly repudiated the claim. He relied on the judgements reported in I (2010) CPJ 92 (NC)  Budhiben Pababhai vs LIC;  I ( 2009) CPJ 231 ( NC) LIC  vs M. Bhawani; II ( 2014) CPJ 95 (NC) LIC vs Veena;  I ( 2014) CPJ 409 (NC) LIC Vs Nita Bhardawaj; II ( 2014) CPJ 190 (NC)  LIC Vs C.Venkataramudu; II ( 2014) CPJ 178 ( NC) LIC vs Help Line Grahak Mandal; AIR 1962 SC 814 Mithoolal Nayak vs LIC; ( 2009) 8 SCC 316 Satwant Kaur Sandhu Vs New India Assurance Co. Ltd.

11. On the other hand, Mr. Chandrajit Mukherjee, supported the impugned judgement. He further submitted that the insured was an Urdu knowing lady and she was not aware of the questions put in the proposal form and the answers given thereto. He further submitted that from the Medical Examiners Confidential Report of the Doctor of LIC dated 31.10.2005 and from the Urine/ Blood reports dt. 3.11. 2005, it will appear that the insured was not found suffering from diabetes or any other disease. He further submitted that there is no nexus between the said diseases and the death of the insured by Cardio Respiratory failure. He relied on the judgements reported in III ( 2007) CPJ 319 ( NC) LIC  vs Sajida Begum; III (2012) CPJ ( NC) LIC vs Naseem Bano; III ( 2014) CPJ 221 (NC) Bajaj Allianz Life Insurance Co. Ltd. & ors vs Raj Kumar .

12. In reply, Mr. Sachin Kumar submitted that it is not the case of the complainant that his wife was not on medication at the time of examination by the Doctor of L.I.C. or at the time of her Pathological investigation and therefore the Urine/ Blood report and other reports, and also the report of the Doctor of LIC are irrelevant .He further submitted that had the insured disclosed about the disease , she was suffering from, LIC would not have accepted the proposal or would have accepted it with higher premium proportionate to the coverage of the risk.

        Referring to Clause 3 of the policy, he submitted that revival of policy cannot amount to waiver on the part of the LIC.

13. After hearing the parties at length and carefully going through the materials and the judgements placed before us, we find as follows. From the discharge summary of CMC Vellore Hospital, it appears that the insured was admitted for treatment of Type 2 Diabetes, Hyper Tension, Hernia etc. for more than a week i.e between 22.7.2005 to 4^th August 2005. But this fact was suppressed in the proposal form filled up by the insured on 31^st October 2005. It is not the case of the complainant that at the time of examination by the Doctor of LIC for issuance of Policy, the insured was not on medication. Therefore only on the basis of the Medical Examiners Confidential report and the Pathological tests got done by the LIC, it cannot be held that there was no suppression of material facts by the insured. The argument advanced that insured was not aware of the questions and the answers given in the proposal form or that the Diabetes, Hyper Tension are common diseases, are also of no help to the complainant. Had the insured correctly answered the questions in the proposal form, the LIC would not have accepted it or would have accepted it on higher premium.

             It was interalia held in the case of Budhiben Pababhai (Supra) that if the information given by the insured is subsequently proved false, the insurer is entitled to confront the insured under section 45 of the Insurance Act, even if the penal Doctor certified that insured was not suffering from serious ailment.

             In the case of Nita Bhardawaj and Veen (supra), it was interalia held that it is immaterial whether the cause of death had any nexus or not with disease suffered and suppressed by insured.

             In the case of C. C. Venkataramudu (supra) it was interalia held that it is the responsibility of the proposer to read and understand the proposal form before signing the same.

             In the case of Satwant Kaur Sandhu (supra) it was held as follows-

“20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a   “material fact.” If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.”

      In the case of Mithu lal Nayak  ( supra) it was interalia held that in the case of suppression of material facts,  no question of waiver arise, if the insured was examined by the Doctor of the Insurance Company.

  In the case of Nita Bharadwaj ( supra) , the judgment of Sajida Begum   (supra) relied on behalf of the complainant was considered and was not accepted by the Hon’ble National Commission in view of the judgement of Hon’ble Supreme Court in the case of P.C. Chacko  vs LIC [ (III) ( 2008) CPJ 78 (SC) ].

         The other judgments relied on behalf of the complainant are also of no help to him. In the case of Rajkumar (Supra) there was no proof of any previous illness or ailment of the deceased/ insured when he was first discharged from the hospital when he was treated only for Typhoid and Malaria. In the facts of the case, it was held that patient was unaware of his disease at the time of filling up proposal form.

         In the case of Naseem Bano (Supra) LIC could not prove that the insured was suffering from Diabetes Mellitus and Hyper Tension and he was aware of the same and got treatment for these disease. In that context it was observed that heart attack had no nexus with the ailments like Diabetes Mellitus and Hyper Tension. But in the present case from the discharge summary of Vellore Hospital itself it was proved by LIC that the insured was hospitalized for more than a week for treatment of several ailments including Diabetes and Hyper Tension.

The Hon’ble Supreme Court has said that the judgments are to be read in the context of the fact situation obtaining in the case and not as statutes.

14. In the result, we hold that LIC- appellant was justified in repudiating the claim and there was no deficiency in service on it’s part.

          Accordingly the impugned judgement is set aside and the appeal is allowed.

          Let the statutory amount be returned to the appellants.

                   Issue free copy of this order to all concerned for information and needful.

          Ranchi,

          Dated:-21-04-2015