Chandigarh

StateCommission

A/141/2015

Smt. Paramjeet Kaur - Complainant(s)

Versus

ICICI Prudential Life Insurance Co. Ltd, - Opp.Party(s)

Ravinder Singh Sampla

23 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	141 of 2015
Date of Institution	:	22.06.2015
Date of Decision	:	23.06.2015

Paramjeet Kaur w/o late Sh.Paramjeet Singh, R/o H.No.1108, B-2, Vishav Karma Colony, Pinjore Panchkula-134102

 ……Appellant/Complainant

V e r s u s

1. ICICI Prudential Life Insurance Company Limited, Regional Office at SCO 14-15,   Sector 9-D, Chandigarh, through its Managing Director.
2. Dewan Housing Finance Corporation Ltd., SCO No.811-812, 2^nd Floor, Sector 22-A, Chandigarh- 160022, through its Managing Director.

              ....Respondents/Opposite Parties

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh. Ravinder Singh Sampla, Advocate for the                   applicant/appellant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 04.02.2015, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).

2.       The facts, in brief, are that Sh.Paramjeet Singh (now deceased), husband of the complainant (hereinafter to be referred as the life assured only) had availed of housing loan to the tune of Rs.5,31,126/-, on 29.02.2012, from Opposite Party No.2.  At the time of sanction of loan, Opposite Party No.2 had introduced the life assured to Opposite Party No.1, for a Home Assure Insurance Policy, and, as such, he purchased the same bearing No.16465998 dated 29.02.2012, from it (Opposite Party No.1), on payment of premium of Rs.46,354/- with an assured amount of Rs.6,51,126/-. The payment frequency of the said Insurance Policy was “single”. 
3.       It was stated that the life assured expired on 27.05.2013. It was further stated that intimation, in this regard, was given to the Opposite Parties. The complainant being the wife and legal heir of the life assured lodged claim with Opposite Party No.1. It was further stated that Opposite Party No.1 deputed an Investigator to investigate the matter.  It was further stated that before acceptance of the Policy, in question, Opposite Party No.1 had got conducted medical tests of the life assured, when he was alive. It was further stated that not only this, when the life assured was selected as Flour Supervisor, in Punjab Mandi Board Chandigarh, in Dec., 2011, before joining his duty, he was medically examined by the Civil Surgeon, SAS Nagar, Mohali.  It was further stated that, surprisingly, the claim of the complainant, was repudiated by  Opposite Party No.1, vide letter dated 18.12.2013 Annexure C-3, on the ground that the life assured was suffering from preexisting disease, which he concealed at the time of filling in the proposal form and taking the Policy, in question.
4.       It was further stated that left with no alternative, the complainant served legal notice dated 26.02.2014 Annexure C-5, upon the Opposite Parties, but to no avail.  It was further stated that the genuine claim of the complainant was repudiated by Opposite Party No.1, on flimsy grounds. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to make payment, in respect of the Policy, in question, as per the claim lodged by her; compensation, to the tune of Rs.1 lac, on account of mental agony and physical harassment; and cost of litigation.
5.       Opposite Party No.1, in its written version,  admitted the issuance of Insurance Policy, in question, in favour of the life assured, as mentioned in the complaint. It was stated that the Policy, in question, was issued, in favour of the life assured, on the basis of information provided by him, in the proposal form.  It was further stated that, at the time of filling in the proposal form, the life assured concealed the material fact, that he had undergone ultrasonography of abdomen, on Aug. 26, 2009, which revealed mild hepatomegaly with fatty liver and was clinically diagnosed as alcohlic liver disease.  It was further stated that, not only this, the life assured also failed to disclose that his liver enzymes report was adverse and he had consulted for treatment, in Outpatient Department of the Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh, several times, before applying for the Policy, in question.  It was further stated that the life assured also failed to disclose that he had undergone computed Tomography (CT) Scan of head, on June 26, 2009, which revealed Hypodense lesions right temporo-occipital and right periventricular region likely infarcts, in the right middle cerebral artery territory. It was further stated that from the medical record, aforesaid, it was revealed that the life assured had the habit of alcohol consumption for the last 20 years. It was further stated that the life assured was well aware of his medical status, and the ailments, with which he was afflicted, on the date of filling in the proposal form, but he deliberately misled Opposite Party No.1, by concealing the material information and furnishing false replies, therein (proposal form). It was further stated that since the information provided by the life assured, in the proposal form, was found to be incorrect, as such, Opposite Party No.1 was well within its right, to repudiate the claim filed by the complainant, as per the terms and conditions of the Insurance Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6.       Opposite Party No.2, in its written reply, stated that since the life assured (now deceased) intentionally, deliberately and willfully concealed the material facts, at the time of filling in the proposal form, as such, the consumer complaint was liable to be dismissed, on this ground alone. It was admitted that Opposite Party No.2 extended loan to the tune of Rs.5,31,126/-, on 29.02.2012, to the husband of the complainant. It was further stated that, Opposite Party No.2, had no concern with Opposite Party No.1, as far as the issuance of Home Assure Policy, in favour of the life assured was concerned.  It was further stated that the dispute, if any, was between Opposite Party No.1 and the complainant, and, as such, Opposite Party No.2, had no role to play. It was further stated that Opposite Party No.2 had every right to recover the claim amount, if any, received as per law. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7.       In the rejoinder, filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1 and 2.
8.       The Parties led evidence, in support of their case.
9.       After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above. 
10.       Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
11.       Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of  130  days, as per the applicant/appellant (as per the office report  89  days), was filed by her (applicant/appellant). It was stated,  in the application, for condonation of delay, that since the complainant had to perform the rituals, after the death of her husband/life assured, the appeal could not be filed within time. It was further stated that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
12.       We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
13.       The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 130 days, as per the applicant/appellant (as per the office report 89 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

14.       In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

15.         In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

16.       In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

17.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

18.         In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

19.       A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. In the instant case, the reason,  stated in the application, is that, since the complainant had to perform the rituals, after the death of her husband/life assured, she could not file the appeal within the normal period of 30 days, stipulated in the Act. The plea taken by the complainant, in the application for condonation of delay, does not merit acceptance. It may be stated here that the life assured/husband of the complainant had expired on 27.05.2013. Thereafter, the claim was lodged by the complainant, with the Opposite Party No.1 on 16.06.2013 and when the same was repudiated by it (Opposite Party No.1), on 18.12.2013 vide letter Annexure C-3, she had also filed a consumer complaint on 24.03.2014, which was dismissed on 04.02.2015, by the District Forum. Thus, when the complainant could lodge the claim, within about one month of the death of her husband and, thereafter, had also filed consumer complaint, on 24.03.2014, before the District Forum, now at this stage, she could not say that since she had to perform the rituals, after the death of her husband/life assured, the appeal could not be filed within time. Even otherwise, the complainant was not to do anything, except to sign the appeal and vakalatnama, in time, and, on the other hand, it was for the Advocate concerned, to file the appeal, and pursue the same (appeal).  Thus, once certified copy of the order, free-of-cost, was received by the applicant/ appellant, it was her duty, to file the appeal, within the prescribed period of 30 days, but she failed to do so.  No doubt, the application, is supported by the affidavit of the applicant/appellant/complainant, yet, no sufficient cause, is made out, from the averments, contained therein, for condoning the delay. It appears that after receiving certified copy of the impugned order, the applicant/appellant, slept over the matter and, ultimately, woke up from her deep slumber, after 130 days (89 days as per the office report),  when the instant appeal was filed. It could be said that the applicant/appellant was not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days , from the date of receipt of a certified copy of the order.  The applicant/appellant did not act, with due diligence, resulting into delay of 130 days (89 days as per the office report),  in filing the appeal, which is about three/four times, beyond the prescribed period of limitation. The cause set up by the applicant/ appellant, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the applicant/ appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that she could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 130 days (89 days as per the office report),   cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20.       The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

 

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

21.        It is evident, from the principle of law, laid down in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/ appellant to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the applicant/appellant, just slept over the matter, and did not take the requisite steps to file the appeal, in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
22.       Now coming to the merits of the case, the Counsel for the appellant, submitted that the life assured had furnished correct and true information that he had not ever suffered and was not suffering from any ailment/ailments, at the time of signing the proposal form. He further submitted that the treatment for any ailment taken much earlier to the signing of the proposal form, by the life assured was not at all relevant for the purpose of repudiation of claim. He further submitted that since the life assured  was hale and hearty and he did not suppress the material facts, the repudiation of claim, in question, was illegal. He further submitted that the District Forum did not take into consideration, all these material facts, as a result whereof, it fell into a grave error, in dismissing the complaint, on the ground, that  the life assured suppressed the material facts, at the time of filling in the proposal form, and obtaining the Insurance Policy. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
23.       It may be stated here, that it has been repeatedly held that the contract of insurance falls in the category of contract of “UBERRIMAE FIDEI” meaning thereby, a contract of utmost good faith, between the parties. When information, on a specific aspect, is asked for, in the proposal form, the insured is under a solemn obligation, to make a true and full disclosure of the same (information), on the subject, which is within his knowledge. Of course, obligation to disclose, extends only to the facts, which are known to the assured, and not to what he ought to have known. The Hon'ble Supreme Court of India in United Insurance Co. Ltd. Vs. M.K.J. Corporation, III (1996) CPJ 8 (SC)= (1996) 6 SCC 428, laid down the principle of law, that it is a fundamental principle of Insurance Law, that utmost good 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 to the contrary. To the similar effect, the principle of law, was laid down in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd.,  II (2000) SLT 323 = I (2000) CPJ 1 (SC) .  In P.C. Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors, III(2008) CPJ 78 (SC), it was observed as under:-

11” Section 45 of the Insurance Act reads as   under:-

45. Policy not to be called in question on ground of mis-statement after two years- No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal form.

12. Section 45 postulates repudiation of such policy within a period of two years. By reason of the aforementioned provision, a period of limitation of two years had, thus, been specified and on the expiry thereof the policy was not capable of being called in question, inter alia on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder knew at the time of making it that the statement was false. Statute, therefore, itself provides for the limitation for valid repudiation of an insurance policy. It takes into account the social security aspect of the matter.

13.There are three conditions for application of Second Part of Section 45 of the Insurance Act which are:

“(a)  the statement must be on a material matter or must suppress facts which it was material to disclose;

(b)    the suppression must be fraudulently made by the policy-holder; and

(c)    the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose”.

24.       The purpose of 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 bonafide. It must appear, from the face of 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.
25.       In Rampreeti Yadav Vs. U.P.Board of High School & Intermediate Education & Ors, V(2003) SCT 394= JT 2003 (Supplt.I) SC 25, the principle of law, laid down, was to the effect, that it is well settled law that mis-representation itself, amounts to fraud, in some cases.
26.       Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, in the instant case, the life assured (now deceased), at the time of taking the Insurance Policy, suppressed the material facts, or had made a wrong declaration or not. Admittedly, Shri Paramjeet Singh, life assured (now deceased) had applied for a loan, to Opposite Party No.2, and subsequently applied for an Insurance Policy to Opposite Party No.1. He was issued the Insurance Policy, in question. Copy of the proposal form Annexure R-1, duly signed by the life assured (now deceased), reveals that he agreed to the important instructions, below the same (proposal form):-

“Please note that the applicant is legally required to make a true, correct and complete disclosure of the information. The insurer has a right to decline a claim request in case of misrepresentation/non-disclosure of the information”

27.       In the proposal form, the life assured, answered some of the questions, in respect of his health details. Relevant replies, in respect of some questions, in the proposal form given by the life assured, are reproduced as under:-

Sr. No.	Health details	Main Applicant Yes/No
d	Have you consulted any doctor for any surgical operations/ailments or have been hospitalized for any disorder other than minor cough, cold or flu?	No
e	Have you ever been treated or told to have diabetes/raised blood sugar, heart attack, heart disease or any other disorder of the circulatory system, chest pain, high blood pressure, stroke/paralysis, asthma, any psychiatric disorder or any other lung conditions, cancer, tumor of any kind, jaundice, hepatitis B or C, liver disease, genitourinary or kidney disorder, digestive or bowel disorder, mental or nervous disorder, musculoskeletal disorders, blood disorder, HIV infection or a positive test of HIV	No
f	Xxxx	Xxxx
g	Xxxx	Xxxx
H	Have you ever suffered/are suffering from any other ailment/disorder not mentioned above	No.

 

28.       According to the Opposite Parties, the life assured did not give true answers to the above questions. Opposite Party No.1 conducted the investigation of the case and produced copies of the outpatient tickets [Annexure R-4 and R-6] of the Post Graduate Institute of Medical Education and Research, Chandigarh (hereinafter to be called as PGIMER), as also Ultrasound Report dated 20.06.2009 of the Mirchias Diagnostics Centre Annexure R-5. From the summary of diagnosis and treatment, on the basis of these outpatient  tickets, as also of Ultrasound Report dated 20.06.2009, it is evident that the life assured before commencement of the Insurance Policy, in question, had been taking treatment from the PGIMER.
29.       From the documentary evidence, produced on record, it was proved that at the time of filling in the proposal form and obtaining the Insurance Policy, the life assured suppressed the material information, that he was suffering from symptoms/ailments relating to liver, and was clinically diagnosed as suffering from alcoholic liver disease, as also Hypodense lesions right temporo-occipital and right periventricular region likely infarcts in the right middle cerebral artery territory. As per the declaration, made by the life assured, in the proposal form, and extracted above, in case of any misstatement or suppression of material information, the Company had the right to deny/repudiate the claim, under the Policy.  It was not the case of the complainant that the life assured was not aware of the symptoms of any disease, or the treatment, he was taking from the PGIMER, Chandigarh, as reflected in Annexures R-4 and R-6. On the other hand, it could also be said that since the life assured himself was taking the treatment, from the PGIMER, Chandigarh, for the ailments, referred to above,  he very well knew about the same and, thus, he was required to  furnish correct information, in the proposal form.  Thus, while answering the questions, in the proposal form, extracted above, he gave the wrong answers. He in clear-cut terms stated that he had not suffered from or was suffering from the symptoms/ailments, relating to diabetes/raised blood sugar, heart attack, heart disease or any other disorder of the circulatory system, chest pain, high blood pressure, stroke/paralysis, asthma, any psychiatric disorder or any other lung conditions, cancer, tumor of any kind, jaundice, hepatitis B or C, liver disease, genitourinary or kidney disorder, digestive or bowel, disorder, mental or nervous disorder, musculoskeletal disorders, blood disorder, HIV infection or a positive test of HIV. Since the life assured (now deceased) made a false declaration, in the proposal form, that he was neither suffering from nor had suffered from liver disease, referred to above, he certainly suppressed the material facts. In Life Insurance Corporation of India Vs. Smt. Santosh Devi, Revision Petition No.3042 of 2008, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 03.09.2014, reference was made to Life Insurance Corporation of India & Ors. vs. Asha Goel (Smt) & Anr. (2001) SCC 160, wherein the Hon’ble Apex Court, inter alia, held as under:-

“The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract.  The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”

30.       The National Commission also relied upon Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (2009) 10 SCR 560, wherein the Hon’ble Apex Court, interalia, observed that the term material fact has been explained by a Court in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be material. Not only this, in Life Insurance Corporation of India Vs. Smt. Santosh Devi (supra), it was held that mis-representation and concealment of fact, made by the life assured, in the proposal form, was certainly a material fact, and had the true state of affairs been disclosed to the insurer, it was quite probable either the proposal would have been rejected or a higher premium would have been charged. Since the life assured (now deceased) in the instant case, made mis-representation/suppressed the fact of liver ailment personally related to him, the Policy became void-ab-initio. Opposite Party No.1 was, thus, legally right, in repudiating the claim of the complainant. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Parties. The District Forum was also right, in holding so.
31.       The submission of the Counsel for the appellant, that, no doubt, the life assured died on account of liver  failure, yet the same had no nexus with the alleged ailments, from which, he had suffered or was suffering, much earlier to the signing of the proposal form and obtaining the Policy, and, as such, the claim could not be legally and validly repudiated is devoid of merit. As stated above, the life assured was diagnosed as suffering from alcoholic liver disease by the PGIMER, Chandigarh, in 2009. The disease aforesaid, had nexus with the death of the life assured. Even otherwise, in the instant case, the question was of suppression of material facts and not, as to whether, the disease(s), on account whereof the life assured died, had any nexus with his death or not. As stated above, the contract of insurance is based on utmost good faith. The parties to such contract are bound to disclose all the facts, in their knowledge and which are material. It was not for the life assured to decide, as to which material facts, he was to disclose and which he was not to disclose, but, on the other hand, it was for the Insurance Company, to decide the same. Since, as per the declaration, made by the complainant, in the proposal form, it was clearly mentioned that, in case of any misstatement or suppression of material information, the Company had the right to deny/repudiate the claim, under the Insurance Policy, in our considered opinion, the latter (Opposite Party No.1/Insurance Company) rightly repudiated the claim. In the instant case, nexus or no nexus of the disease for which the life assured was taking treatment from the PGIMER, with his death thus, hardly mattered. In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands rejected.   
32.       No other point, was urged, by the Counsel for the appellant.
33.       For the reasons, recorded above, the application for condonation of delay of 130 days (89 days as per the office report), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, and on merits too, at the preliminary stage, with no order as to costs.
34.       Certified copies of this order, be sent to the parties, free of charge.
35.       The file be consigned to Record Room, after completion

Pronounced.

23.06.2015_

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

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(PADMA PANDEY)

      MEMBER

 

 

Rg