1.       The appellants are father and siblings of late Sh. Manoo Lahoti. The appellants being aggrieved of the order of the State Commission Rajasthan dated 28.10.2015 have preferred this appeal.

2.       Briefly stated, the facts relevant for the disposal of the appeal are that the appellants filed a consumer complaint in the State Commission Rajasthan alleging that Sh. Manoo Lahoti on 26.06.2011 submitted a proposal for purchasing life insurance policy in the office of the opposite party. Pursuant to the proposal form, Manoo Lahoti was medically examined by the medical board constituted by the opposite party.  The Board on examination found Manoo Lahoti fit and healthy and submitted its report to the OP No.2 on 27.06.2011.  Thereafter, insurance proposal of Manoo Lahoti for life insurance policy of Rs.50 lakhs was accepted and manoo Lahoti issued a cheque dated 25.06.2011 for Rs.16920/- drawn on Bank of Boroda against the first insurance premium.  The cheque was presented by the opposite party for encashment and amount of cheque was credited in the account of Op no.2 on 30.06.2011.  It is alleged that beside life insurance cover of Rs.50 lakhs, the policy also provide for payment of claim of Rs.5 lakhs for the insured contracting a serious disease.

3.       It is further alleged that on 28.06.2011 while in Delhi, Manoo lahoti felt severe headache and nausea.  He went to General Hospital in Gurgaon and his MRI was done. As per the report of MRI, “Space Occupying Lesion” brain was found.  Resultantly Manoo Lahoti was admitted in Paras Hospital Gurgaon for treatment.  He remained hospitalized from 28.06.2011 to 07.07.2011.  During said period, Manoo Lahoti underwent surgery and biopsy was done.  Biopsy sample was sent to Ganga Ram Hospital and report of biopsy confirmed that Manoo Lahoti was suffering from cancer.  Though prior to biopsy report, Manoo Lahoti was not aware of his disease.  It is alleged that the information regarding health condition of Manoo Lahoti was given regularly to the opposite parties on 11.07.2011, 08.08.2011, 09.08.2011, 18.12.2012 and January 2013 claiming for the benefit under serious ailment clause of the insurance contract.   It is further the case of the complainants that Manoo Lahoti was subsequently treated at Deep Hospital Jaipur where he passed away on 13.10.2013 due to septicaemia.  The appellants complainants being legal heirs of the deceased submitted insurance claim with the opposite parties but Op no.2 repudiated the insurance claim vide repudiation letter dated 09.01.2014.

4.       Being aggrieved of the repudiation of the claim, the appellants complainants filed insurance claim in the State Commission, Rajasthan.

5.       The opposite parties on being served with the notice of the complaint filed written statement. In the written statement was submitted that insurance policy has been obtained by concealment of material fact i.e. proposed insurer was suffering from cancer.  Therefore, opposite parties were justified in repudiating the claim.        

6.       The State Commission on consideration of the pleadings and the evidence came to the conclusion that the insurance policy was obtained by the deceased Manu Lahoti by concealment of material fact i.e. he was suffering from brain cancer. The State Commission therefore holding the repudiation to be justified dismissed the complaint.

7.       Being aggrieved of the order of the State Commission, the complainants have approached this Commission in appeal.

8.       Learned Shri M.L. Lahoti, Advocate for the appellants has contended that the State Commission has failed to appreciate the facts properly. It is submitted that the finding of the State Commission is not supported by any conclusive evidence that at the time of submitting the proposal form deceased Manu Lahoti was aware that he was suffering from brain cancer. Expanding on the argument learned counsel submitted that the State Commission fell in grave error in coming to the conclusion that sudden diagnosis of cancer on 28.6.2011 was not possible. It is contended that on the contrary expert medical opinions suggesting a highly malignant tumor may be of recent origin and once opinion was given to the family of the deceased by Neurosurgeon Amit Srivastava of Paras Hospital on 8.8.2011. It is further contended that on perusal of copy of the MRI report/film as also the discharge summary of the deceased issued by Paras Hospital it would be seen that MRI was done on 28.6.2011 at 1.18 pm and the deceased was admitted in Paras Hospital on 28.6.2011 at 3.08 pm. This evidence leaves no doubt that prior to 28.6.2011 neither the deceased nor his family members had any inkling that the deceased was suffering from brain cancer. Learned counsel has contended that as a matter of fact the cancer was established on the basis of the biopsy report of Sir Ganga Ram Hospital which is much later to the submission of proposal form. Counsel for the appellant has, thus, prays for acceptance of the appeal and setting aside of the order of the State Commission.

9.       Learned Shri Joydip Bhattacharya, Advocate for the respondent/opposite party on the contrary has vehemently argued in support of the impugned order and submitted that the State Commission has rightly appreciated the facts and that the impugned order cannot be flawed.

10.     On careful consideration of the rival contentions as also the record we do not find merit in the appeal for following reasons: -

11.     Undisputedly the proposal form for purchase of the life insurance policy was submitted by the deceased Manoo Lahoti on 27.6.2011 and on 28.6.2011 Manoo Lahoti visited General Hospital, Gurgaon with the complaint of headache and nausea, which led to his MRI. The MRI report indicated as under:  

 “MRI study reveal a large area of abnormal signal intensity measures 54.0 mm x 63.0 mm in size with said solid cystic component and shows few area of haemorrhage take peripheral rim enhancement and nodular enhancement in left frontal lobe, involving left side of corpus cellesum. Minimal perilesional oedema is seen. Mass effect (any effacement of ipsilateral frontal horn and sub falcine herniation towards left. Minimal dialation of contrast lateral ventricles is noted.

Rest of the brain stem and bilateral cerebellar hemisphere appear normal.

Bilateral 7^th and 8^th nerve complexes are normal.

Bilateral CP angles, cerebellar folia are normal.

Sella is normal. No sellar mass. Supra-sellar and para-sellar regions appear normal.

CSF shows normal signal. No compression in CV junction.

A large intra cerebral space occupying lesion with solid and cystic component few area of haemorrhage or calcification in left frontal lobe with minimal perilesional oedema and mass effect as described above? Oligodendroglioma?? Anaplastic astrocytoma.”

12.     From the above it is clear that on very next day of submitting the proposal form alongwith the cheque for insurance premium Manoo Lahoti was found suspected of “Space Occupying Lesion” indicative of highly malignant anaplastic astrocytoma. This fact in itself raises a strong suspicion that Manoo Lahoti who was a qualified doctor was aware of his medical condition while submitting the proposal form which condition was deliberately concealed while answering the question relating to the health condition of Manoo Lahoti. Aforesaid suspicion further strengthens from the fact that as per the ground “I” in the memorandum of appeal the appellant had pleaded that on 25.6.2011 Manoo Lahoti had purchased a life insurance policy from LIC of India also. Taking of two insurance policies by Manoo Lahoti within a short span of detection of his medical condition further strengthens the suspicion that Manoo Lahoti was aware of his medical condition, therefore, he approached two insurance companies for purchasing life insurance policies of substantial amounts.

13.     We are conscious of the fact that the suspicion howsoever strong is not substitute for the proof. Thus, in order to justify the repudiation of the insurance claim onus lies heavily on the opposite party to establish that Manoo Lahoti concealed his medical condition already known to him while submitting proposal form for purchasing the insurance policy.

14.     In order to find answer to the question whether or not Manoo Lahoti had concealed the material information regarding his medical condition, we have perused the copy of the proposal form submitted by him. In clause 6.2 of the proposal form dealing with the health activity section Manoo Lahoti in response to a question whether he has been currently receiving any medical treatment or awaiting medical or surgical consultation, test or investigation has answered in the negative. Similarly, in response to the various questions pertaining to any medical ailment, Manoo Lahoti had answered in negative. One of the questions being as to whether the proposer is suffering from cancer, tumour or growth, Manoo Lahoti had answered in negative. Thus, it is clear that while applying for insurance policy Manoo Lahoti had sought to convey that he was hale and hearty and not suffering from cancer or any other serious disease. No doubt opposite party has not been able to show that at the time of filling the proposal form Manoo Lahoti was aware of his brain tumour yet this is clear case of concealment of material fact.

15.     On perusal of copy of the insurance policy we find that this insurance policy records the date of commencement as 8^th of July, 2011 and the risk commencement date is also w.e.f. 8^th July, 2011. This implies that the proposal submitted by Manoo Lahoti for purchase of insurance policy was accepted on 8^th July, 2011 and the insurance contract therefore came into being on 8^th July, 2011. From the MRI report discussed above it is clear that the brain tumour of Manoo Lahoti was detected on 28.6.2011. Further, discharge summary of Manoo Lahoti issued by Paras Hospital, Gurgaon records that Manoo Lahoti admitted in the hospital on 28.6.2011 at 3.08 pm and he was discharged on request on 7.7.2011 at 9.00 am. The diagnosis of Manoo Lahoti recorded in the discharge summary is as under: -

“DIAGNOSIS:

• Left frontal malignant Astrocytoma- WHO grade IV

  (Biopsy proven)

• Drug eruption

• < >

  Mild headache x 1 day

• Vertigo x 1 day

   

  HISTORY OF PRESENT ILLNESS:

  Patient was apparently alright when yesterday he started complaint of vertigo for which he took tab. Stugero & got relief, he also complained of mild headache for which he did not take any analgesics. He got MRI brain done which revealed left frontal SOL. He then came to Paras Hospitals for further evaluation & management.

  No history of LOC/seizure/limb weakness/disturbance in speech.

  PAST HISTORY:

• Appendectomy in 2004

• No history of TB/BA/HTN/DM.”

16.     From the above, it is clear that prior to acceptance of the insurance proposal, Manoo Lahoti had come to know that he was suffering from left frontal malignant Astrocytoma-WHO Grade IV. Despite of having come to know about the aforesaid condition, Manoo Lahoti failed to inform the insurance company about said health condition which, in our view, amounts to concealment of material fact, which would have impacted the decision of the insurance company to accept the proposal.

17.     Hon’ble Supreme Court in the matter of P.C. Chacko & Anr. Vs. Chairman, LIC of India (2008) 1 SCC 321, has held as under: -

“The purpose for taking a policy of insurance is not, in our opinion, very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bona fide. It must appear from the face of the record. In a case of this nature it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law.”

18.     Similarly, Hon’ble Supreme Court in the matter of Satwant Kaur Sandhu Versus New India Assurance Company Limited (2009) 8 SCC 316 has held as under: -

“When there is a suppression of material fact by the life assured in relation to his health, the insurance company cannot be compelled to pay the insurance amount to the nominee.”

19.     In view of the above position in law and discussion above, we are of the opinion that the State Commission has rightly appreciated the evidence and its order dismissing the complaint cannot be faulted. Appeal is therefore dismissed.