Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) These two appeals stand disposed of by this common order since they involved identical facts and common question of law and arose from one and the same order.
(2) These two appeals take an exception to an order dated 31.05.1999 passed in Consumer Complaint No.63/1997, Smt.Vilasini Vilas Dhekane V/s.Branch Manager, L.I.C. of India & Ors., by the Consumer Disputes Redressal forum, District Sindhudurg (‘the Forum’ in short).
(3) Undisputed facts are that deceased Vilas Dhekane had taken insurance policy from L.I.C. It was an endowment Policy and said policy was lapsed on 01.08.1993 since the insured failed to pay the premium. He had got revived said policy after applying for the same and paying the premium w.e.f. 30.06.1995. Thereafter he died on 11.03.1996. The cause of death was ‘acute cardio pulmonary failure’. Since the death claim was lodged within the short period after the policy was revived, the matter was investigated by the Insurance Company and it was found that while reviving the policy, the insured had suppressed the material fact about his illness which required hospitalisation more than 7 days. Consequently it repudiated the claim and feeling unsatisfied thereby original Complainant filed the consumer complaint. Upholding the claim of the Complainant, the Forum awarded compensation of `50,000/- i.e. amount of the policy and `5,000/- as compensation for mental torture. Feeling aggrieved thereby original Opponents as well as the Insurance Company preferred Appeal No.1375/1999 and also not satisfied with the compensation awarded original Complainant preferred Appeal No.1379/1999 for enhancement of the compensation.
(4) Heard Mr.Rajiv Chavan, Advocate in Appeal No.1375/1999 for the Appellants/original Opponents and Respondents in Appeal No.1379/1999. Respondent Smt.Vilasini Vilas Dhekane in Appeal No.1375/1999 and Appellant in sister Appeal No.1379/1999 remained absent in spite of the intimation of the date given to them by registered post. The acknowledgement is on record. Hence, we prefer to hear the appeals in their absence.
(5) The Form for revival of the policy filled in by the deceased Vilas Dhekane wherein in its paragraph no.2 recorded answers in the negative to the questions viz.whether he had taken any medical treatment for an arrangement he required to take it for more than a week, whether he had undergone any surgery or suffered any accident or injury, whether he had taken any ECG, X-ray, examination of his blood, urine etc. In this context when it was found that even at the time of revival of his policy and filling of the form, he was on medical leave and he was taking treatment for his diabetic ailment. Material placed on record clearly established the same. Therefore, though caused of his death is mentioned as heart failure, the fact revealed is that he had suppressed the material fact about his illness while reviving the policy and, thus, committed breach of good faith In the circumstances, the Forum erroneously ignored this particular aspect and allowed the consumer complaint. We do not find ourselves in agreement, in the above circumstances, with the impugned order passed by the Forum.
(6) Original Complainants in appeal No.1379/1999 preferred an appeal for enhancement of compensation awarded. In the light of the above referred circumstances and findings arrived at by us, it is not the case for any enhancement sought much less grant of any compensation since deficiency in service on the part of the Insurance Company is not at all established. Repudiation of the insurance claim by the Insurance Company on the basis of breach of utmost good faith is proper.
(7) For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Appeal No.1375/1999 is allowed. While Appeal No.1379/1999 stands dismissed.
(ii) Impugned order dated 31/05/1999 is set aside. In the result Consumer Complaint No.63/1997 stands dismissed.
(iii) In the given circumstances, both the parties to bear their own costs in their respective appeals.
(iv) Appellants in Appeal No.1375/1999 have deposited an amount of `1,13,266/- with the Forum, as stated at Bar, on verification by the registry of the Forum, such deposit be refunded back to the Appellants who are the Appellants in Appeal No.1375/1999; after the revision period for filing revision in Hon’ble National Commission, is over.
(v) Copies of this order be furnished to all the parties.
Pronounced on 15th July, 2011.
