JUSTICE J. M. MALIK 1. The learned counsel for the appellant heard. At the time, when Sh. Rinku Trivedi, husband of the appellant, Smt. Pinky Trivedi, since deceased, gave a declaration on 02.11.2009 for revival of the policy, the question asked were, have you suffered from any illness/disease requiring treatment for a week or more, did you ever have any operation, accident or injury and lastly have you had an electrocardiogram, X-ray or screening, blood urine or stool examination? The insured replied in negative. 2. The arguments urged by the learned counsel for the appellant is that his policy had matured on 28.02.2009 and this is an admitted fact that he received stab injury on 15.05.2009 and in the second attack, he died on 22.12.2009. 3. The contention raised by the learned counsel for the appellant is that there is no nexus between the cause of injury and death of the husband of the appellant. On the second injury, he was again stabbed by 5/6 persons. We have also perused the post-mortem report which mentions “shock and haemorrhage due to multiple stab and chop injuries”. We are of the considereda view that the nexus stands established. The learned counsel for the appellant has invited our attention towards the investigation report and answer, which are reproduced hereunder:- “A-8) State whether any nearest relative of the deceased has died of contagious or hereditary diseases. If yes, provide details. No. We did not find anybody of his relative has died of contagious or hereditary disease. A-10) Whether you feel or observed the insured person was not in good health at the time of and/or before the date of the proposal/revival and any proof that has been obtained or can be obtained if the deceased insured person was not in good health. (Report any disease or illness by which he/she was frequently affected) No. During investigation we did not find any pre proposal history of insured. Insured was murdered by 4-5 people.” 4. The learned counsel for the appellant explains that there is no nexus between the first attack involving stab injury and the murder. This argument is bereft of merit. It stands established that the insured had concealed the fact that he has got the stab injury. Had he informed the Insurance Company, it would have either rejected his proposal form or would have enhanced the premium. This is a clear cut case of suppression of facts. 5. To our opinion, this question is no more res integra. This Commission has decided this question, time and again. In a recent judgment in Revision Petition No.85/2007, titled as Pritam Kaur Vs. LIC of India, decided on 10.01.2011, his Lordship Hon’ble Mr.Justice Ashok Bhan and Hon’ble Mrs. Vineeta Rai, Member, were pleased to hold, as under :- “However, while reversing the order of the District Forum, State Commission directed the respondent to pay Rs.20,000/- to the complainant as ex-gratia payment. Counsel for the respondent states that the sum of Rs.20,000/- as ex-gratia has already been paid to the complainant. Reading of paras 13 & 14 of the finding recorded by the State Commission clearly show that the insured was guilty of suppression of material facts at the time of taking of the policy as well as at the time of revival of the policy. At the time of revival, fresh declaration is taken on the basis of which new contract is entered into. Respondnet was suffering from Rheumatic Heart Disease (RHD) for 4-5 years’, prior to his death, which clearly shows that he failed to disclose this fact while filing the declaration at the time of taking the policy as well as getting it revived. No ground for interference is made out. Dismissed”. 6. Same view was taken by this Commission, in a case, titled LIC of India Vs. Parasmal, RP No. 618 of 2009, decided on 18.11.2009, wherein it was held, as under :- “Contentions were raised on behalf of the petitioner – insurance company too, that notwithstanding the fact that insurance company had revived the policy on payment of premium, along with interest, this being a contract, between the parties, it was obligatory on part of the respondent to make disclosure of facts about he having undergone bye-pass surgery on 23.01.1995, but since this material fact was suppressed at the time of seeking revival of the policy by the respondent, repudiation of claim of the respondent was not valid. Having considered the issues raised by parties and regard being had to the fact of non-payment of lapse of policy for premium due, which was eventually revived by insurance policy, we are of the view that the respondent had not disclosed ‘factum of he having undergone bye-pass surgery’ and insurance being a contract of good faith between the parties, the terms of the policy had been evidently violated by respondent. For proposition, the revival of insurance policy operates as new contract, fastening liability against the insured to disclose all material facts to the insurer. We may refer to a decision of Hon’ble High Court, Andhra Pradesh, in the matter of Ahmedunnisa Begum Vs. LIC of India, Hyderabad, AIR 1981 AP (50) and a decision of National Commission in RP 1088/1995, reported in (1997) CPJ 46 (HC). In view of this fact which remained un-noticed by fora below while setting aside the orders passed by the fora below, we allow the revision petition, with no order as to costs”. 7. Same view was taken in the judgment of the Hon’ble Apex Court in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd., (2009) 8 SCC 316, wherein it was held, at Paras 18, 19 and 21, as under :- “18. A mediclaim policy is a non-life insurance policy meant to assure the policy-holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract ‘uberrimae fide’, meaning a contract of utmost good faith
on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject, which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. 19. In United India Insurance Co. Ltd. Vs. M.K.J. Corpn., this Court has observed that it is a fundamental principle of insurance law that utmost faith must be observed by the contracting parties. Good faith forbids either party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. 21. Over three centuries ago, in Carter Vs. Boehm, Lord Mansfield had succinctly summarized the principles necessitating a duty of disclosure by the assured in the following words:(All ER pp. 184 H-185 I) Insurance is a contract of speculation. The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the assured only; the underwriter trusts his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist. The keeping back of such circumstance is a fraud, and therefore the policy is void. Although the suppression should happen through mistake, without any fraudulent intention, yet still the underwriter is deceived, and the policy is void; because the risqué run is really different from the risqué understood and intended to be run at the time of the agreement …… The policy would be equally void against the underwriter if he concealed … God faith forbids either party, by concealing what he privately knows, to draw the other into a bargain from his ignorance of the fact, and his believing the contrary.” 8. The first appeal, filed by the appellant has no merit and therefore, it is dismissed in limine. |
