Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by Kuldeep Kaur widow of Kulwinder Singh as nominee against the opposite parties i.e. Life Insurance Corporation of India Phagwara Branch through its Branch Manager and LIC Jalandhar Division through its Divisional Manager seeking direction against the opposite parties to settle the insurance claim of the complainant on the death of her husband Kulwinder Singh during the insurance period and monetary compensation for mental agony and physical harassment on account of deficiency in service.<br /> 2. Brief facts in the complaint lie in narrow compass.. The deceased Kulwinder Singh husband of the complainant took money back policy bearing No. 132196803 from opposite parties at Phagwara for a sum assured of Rs.2,00,000/- and paid first premium of Rs.13467/- vide insurance policy dated 21/2/2006 and same was to be matured on 21.2.2026. Unfortunately husband of the complainant fell sick and remained admitted in various hospitals and ultimately died on 17.1.2007 leaving behind the complainant as his widow and three children. Complainant being nominee lodged her claim with the opposite parties to pay the policy amount after fulfilling all the requirements of the opposite parties as per their directions. It is further alleged that opposite party has been procrastinating her justifiable claim under the insurance policy on the death of her husband on one pretext or the other which amounts to deficiency in service on its part for which she is not only entitled to assured amount of Rs.2,00,000/- but also to monetary compensation.<br /> 3. Opposite parties appeared and controverted the allegations of the complainant and resisted her claim. The factum of insurance policy for sum assured of Rs.2,00,000/- under the LIC policy dated 21/2/06 of Kulwinder Singh with the Insurance Co. is not disputed.. The principle defence of opposite party Insurance Company is that contract of insurance with Kulwinder Singh has become absolutely null and void because he made untrue statement in the proposal form regarding his state of health and as such was guilty of suppression of material fact of pre-existing auto Liver disease prior to commencement of insurance policy and was attributable to his death.Opposite party had collected evidence regarding health of Kulwinder Singh insured from Guru Nanak Dev hospital, DMC hospital Ludhiana and also Ghai hospital where he was diagnosed as Live damaged. Therefore, opposite party Insurance Company is perfectly justified to repudiate the insurance claim of the complainant as the insured died within one year of the insurance policy by fraudulent concealment of his pre-existing disease prior to commencement of policy and as such there is no deficiency in service on its part.<br /> 4. In support of her version complainant produced in evidence affidavits and documents Ex.C1 to C6.<br /> 5. On the other hand opposite party produced in evidence affidavit and documents Ex.R1 to R8.<br /> 6. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urged before us that repudiation of insurance claim for the insured amount of Rs.2,00,000/- is illegal and arbitrary being contrary to the terms and conditions of the insurance policy Ex.R2 dated 20/2/06 because Insurance Company has miserably failed to establish charge of suppression or material concealment of pre-existing disease of Kulwinder Singh insured. On the other hand it has been counterargued by learned counsel for the opposite parties that false answers in the proposal form by the insured regarding his state of health and duly proved by certificates of his medical treatment vide Ex.R3 dated 14/2/2007 from Ghai hospital and Ex.R4 dated 5/12/06 from DMC hospital and Ex.R7 dated 28/11/06 from Guru Nanak hospital disentitles the complainant to the insurance claim as he was proved to have been diagnosed as patient of ALD/cirrhosis/ evolving PHT/hepatitis and liver damage on account of being chronic alcoholic and when he died within one year of commencement of the policy.<br /> 7. We have considered rival contentions of counsel for the parties. However, we do not find merit in the contentions of learned counsel for the complainant. No doubt under section 45 of the Insurance Act, policy can be called in question within period of two years from the date on which it was effected on the ground that any statement leading to the assured of the policy was inaccurate or false but if policy is questioned after period of two years, insurance Co. can repudiate the policy if it shows that such statement was on material matter or insured suppressed fact 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 statement was false or that it suppressed facts which it was material to disclose.<br /> 8. Now adverting to the facts and evidence adduced by the parties in support of their respective pleas, this fact is not disputed that Kulwinder Singh was insured by the opposite party LIC for sum assured of Rs.2,00,000/- vide insurance policy dated 21/2/06 Ex.C6/R2 for the period 22/2/06 to 21/2/2026 on payment of annual premium of Rs.13467/- but later on he expired on 17/1/07 on account of liver damage vide death certificate Ex.C5 leaving behind complainant as his widow, his mother and three children. In the column No.11 (a) (b) (d) (h) of the proposal form regarding state of health, he categorically stated that he had not been suffering from any ailment pertaining to liver, heart , stomach, lungs, kidney,brain or nervous system and that he never used alcoholic drinks, though statement of Kulwinder Singh ( now deceased) is sought to be discredited by placing on the record Form No.3816 treatement of hospital Ex.R3 of Ghai hospital, Ex.R5 Form No.3784 of Ghai hospital Ex.R6 dated 5/12/06, Form No.3816 of DMC hospital and Ex.R7 of DMC hospital and Ex.R8 Form No.3816 of Guru Nanak Medical hospital from 22/11/06 to 28/11/06 There is also statement of Kuldeep Kaur complainant Ex.R4 that her husband Kulwinder Singh suffered from liver jaundice and admitted in Ghai hospital from 3/1/07 to 12/1/07. No doubt, opposite party LIC repudiated the claim solely based on the observations in medical treatment certificates about the liver disease and chronic alcoholism of the insured attributable to his death. Surprisingly opposite party Insurance Company has not been able to establish the charge of pre-existing disease of his liver or his alcoholism at the time of commencement of insurance policy or prior to it. The hospital treatment certificates referred to the diagnosis of liver disease and treatment thereof during the insurance period and as such no evidentiary value can be attached to these certificates because admittedly neither any treating doctor had proved with any past medical record of deceased Kulwinder Singh that he was afflicted with chronic liver disease or alcoholism of the insured if any was having any direct nexus with his death. Ex.R5 Form No.3784 dated 20/3/07 medical attendance certificate's column No.5(c) only indicates that insured had been suffering from the disease for the last about 2/3 months whereas in Ex.R6 Form No.3816 hospital treatment certificate dated 7/6/07 indicates history of ailment in column No.5(b) by brother-in-law of the patient attested by Dr.Prerna of D.M.C hospital Ludhiana whereas Form No.3784 Ex.R7 medical attendance certificate leaves details blank about his treatment during his last illness at Guru Nanak Nursing Hospital as reflected in column No.8 (a) certified by Dr.Prerna dated 3/5/07 and Form No.3816 Ex.R8 hospital treatment certificate of Guru Nanak Medical hospital Jalandhar indicates chronic alcoholic C/o distended abedx3-4 dabC/o distended urination and history stated to have been reported by the patient and signed by Dr.Neha of G.N.M.H. Notwithstanding derivative observations of the treating doctors in these certificates, we cannot be oblivious of Regulation No.4(4) of Insurance Regulatory and Development Authority ( Protection of policy holders' interest) Regulations, 2002 that onus of proof rests with the insurer in respect of any information not so recorded where the insurer claims that the proposer suppressed any material information or provide false information on any material to the grant of cover. As already observed no authenticity can be attached with these certificates unless accompanied with past medical record of chronic liver disease of the insured duly proved by doctors prior or at the time of insurance. Mere allegation of his being chronic alcoholic or mere consumption of liquor for years together does not constitute any pre-existing disease. Therefore, we cannot draw any inference of pre-existing chronic liver disease merely on the observations recorded in the treatment certificates Ex.R3 to R8 when the entries in the certificates have been questioned, so mere assertion made on the history of the patient recorded in the hospital record was not considered sufficient to hold that patient had earlier taken treatment for such like disease as it was clearly held in a case reported as Smt.Tripta Rani vs. LIC 1999 (1) CLT page 1 that repudiation of claim solely on the basis of history of hospital record is arbitrary and illegal. The non settlement of the claim on that account amounts to deficiency in service. This fact is not disputed that Insurance Company has not examined the concerned doctor who diagnosed/treated the liver disease of insured . No period or date of consultation of treatment was mentioned in the medical treatment certificates vide Ex.R3 to R8 nor even the affidavits of the doctors of Guru Nanak Medical hospital or DMC hospital or even of Ghai hospital has been filed. <br /> Another defence plea of the Insurance Company stands militated by the affidavit filed by Kirpal Singh Ex.C3 agent of the LIC in which he has clearly stated that at the time of obtaining LIC policy bearing No.132196803 for sum assured of Rs.2,00,000/- he took signatures of kulwinder Singh on blank proposal form which was later on filled by him with his hand without consulting Kulwinder Singh deceased and further deposed to this effect that he was hale and hearty before his death. Had he deposed false facts, Insurance Company would have impeached his credibility by summoning and cross-examining him. Therefore, no merit is found in the contentions of learned counsel for the opposite party LIC that insured had given false answers in column No.11 of the proposal form so as to discard the genuine claim.<br /> 9. Learned counsel for the Insurance Corporation has relied upon Supreme Court's case reported as 2008 (1) Civil Court Cases 206 *SC) P.C.Chacko & Anr. vs. Chairman Life Insurance Corporation of India & Ors. that Insurance Corporation is justified to repudiate the policy within two years when suppression of material facts fraudulently made or the policy holder knew at the time of making it that statement was false. However, the facts in the reported case stand on different footing with the present one inasmuch as firstly material column NO.11 in the proposal form Ex.R2 was filled by the Agent of the Corporation at his own instance without consulted the insured and explaining its implications and as such no knowledge can be attributed to the insured about pre-existing liver disease, if any, and secondly as already observed, Insurance Corporation has miserably failed to prove from any past medical record prior to the insurance policy that insured was afflicted with chronic liver disease having conscious knowledge or having nexus with alleged alcoholism .<br /> Learned counsel for the opposite party LIC has also referred to the case reported as The Marketing Manager LIC of India vs. Smt.S.Vijaya 1995(1) CPR 332 (NC) to substantiate the defence plea of valid repudiation of the insurance claim of the complainant on account of suppression of material facts concerning health by the Insured Kulwinder Singh in the proposal form Ex.R2 and also further relied upon the cases reported as LIC of India and another vs. Kantaben (1996) CPJ 115 (NC) and LIC of India vs. Smt. Lily Rani Roy 1 (1997) CPJ 46 (NC) II (2003) CPJ 135 (NC) LIC of India vs. Mansa Devi and the last one Smt.A.Vijaya Laxmi vs. LIC o India case No.25 A.P. State Consumer Disputes Redressal Commission, Hyderabad. We have gone through the above cited cases but these cases are distinguishable with the facts of the present case. The plinth and substance in all these cases is that deceased insured had intentionally and fraudulently concealed their pre-existing respective diseases in the proposal form either before revival of the lapsed policy as in the case of the Marketing Manager LIC of India vs. Smt.S.Vijaya *supra( or by past medical record and histology report dated 12/8/89 in case of LIC of India vs. Kanaben (supra) of pre-existing disease of cancer at the time of commencement of the policy and the policy taken by the deceased was held to be vitiated by reason of suppression of material facts by the insured and LIC was held to be justified to repudiate its liability under the policy and not liable to pay even for the refund of the amount under the contract while placing reliance upon a case of Mithulal Nayak vs. LIC Of India and other and likewise case of Smt.Lily Rani Roy vs. LIC of India, pre-existing disease of the insured was also proved by medical record before revival of the policy in July 1992 ike report of histology and clinical note like swelling over the erigestric region and on rectus muscle. The microscopic study showed histology of papillary carcinoma . Inspite of this knowledge of the deceased of the abovesaid disease though given false answers in the proposal form. Likewise LIC of India vs. Mansa Devi, existence of diabetes and treatment undergone for eight years followed by leg amputation after a thorn prick, renal failure of the insured to cause death was also proved by certificate of treatment and also medical leave applied by the insured prior to the insurance period.. The last one case Smt.A. Vijaya Laxmi vs. LIC of India (supra) pertains to the repudiation of two policies of the insured as LIC successfully established from past medical letters dated 3/5/0- and 5/5/90 and letter dated 8/7/89 of Swarna Nursing Home at Tirupati about the insured suffering from Pulmonary hypertension and undergoing treatment for the same from 1989 itself and letter dated 4/10/1991 of Apollo hospital Department of Cardiology, Madras and treatment for Pulmonary hypertension and conscious concealment of the disease by the insured prior to insurance period of the policy led to repudiation of claim. Therefore, above cited cases are not helpful to the case of complainant. Undoubtedly onus of the Life Insurance Corporation becomes lighter in the event of death of insured within period of two year from the commencement of the policy but even that much onus has not been discharged to substantiate its allegation of suppression of disease. Equally Forum cannot draw inference of knowledge of deceased about alleged his pre-existing disease of liver merely on the basis that he was diagnosed and treated of such disease during the period of insurance nor any authenticity can be attached to the observations of treating doctors recorded in the medical treatment certificates or that he was chronic alcoholic for more than nine years attributable to his death.<br /> In the ultimate analysis of aforesaid discussion we hold that repudiation of insurance claim of the complainant by the opposite parties is arbitrary, illegal and unjustified. We, therefore, accept the complaint and direct the opposite party Insurance Corporation to pay insurance claim for the sum assured of Rs.2,00,000/- alongwith allied benefits with 9% interest on the said amount after two months of filing of claimant statement Ex.R4 till realisation.<br /> Let certified copies of judgment rendered be supplied to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced :   ( Surinder Mittal )    ( A.K. Sharma )<br /> 13.3.2008      Member      President.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />