The case of the complainant in brief is that  on 21-11-01 the husband of the complainant, Late Kulen Dehingia obtained LIC policy from OP No.3 through the agent OP No.4 vide Policy No.441506295 dated 21-11-01 for the sum assured of Rs.99,000/- after being paid requisite premium under the scheme namely ORD wherein, the complainant was nominated as nominee of the said policy. Thereafter, the LIC was collecting its premium with a view to give entire benefit to the policyholder. During subsistence of the aforesaid insurance policy on 21-11-11 Kulen Dehingia died leaving behind his wife Smti. Pinumoni Dehingia as nominee to collect and withdraw the entire benefit of the insurance policy. Immediately after the death of deceased Kulen Dehingia the matter was informed to the OP and the complainant also submitted the claim papers along with documents.  The OPs after getting the claim, deposited only an amount of Rs.72,454/- on 13-12-2012 in the Bank  Account No.123501000001524 maintained by the complainant in the Indian Overseas Bank, Dibrugarh whereas, the complainant had to get an amount of Rs.3,54,278/-. The OP instead of depositing entire Rs.3,54,278/- deposited only Rs.72,454/- for their personal gain. As such, on 28-05-13 the  complainant sent a legal notice through her lawyer to the OPs to pay her the remaining amount of Rs.2,81,824/-. But, surprisingly on 30-06-13 the complainant received a letter dated 04-06-13 wherein the OP stated that they would not pay the remaining amount, mentioning some frivolous ground that deceased Kulen Dehingia was alcoholic  and died due to liver cirrhosis. The complainant again on 01-08-13 approached the OP to pay her remaining dues but, the OP did not give any heed  to her request. The OPs deliberately to cause wrongful loss to the complainant and wrongful gain to  the OPs  retained Rs.2,81,824/- and thereby deceived the complainant. As such, the act of the OPs were out and out deficiency in service due to their negligence for which the complainant had to suffer loss, torture, harassment and agony. Hence, the complainant filed this case claiming the remaining amount of Rs.2,81,824/- with the interest and also prayed for the compensation of Rs.1,00,000/- for mental torture, harassment and agony along with the cost of litigation.

After registering the case, notices were  issued to all the OPs and proforma OPs to which all of them have submitted their written statement.

OP No.1,2,3 together in their written statement stated inter-alia that the case is not maintainable in law  as well as in fact. The OP No.1,2,3 in their written statement stated that the deceased Kulen Dehingia had purchased the policy No.441506295 from the office of the OP No.3 with the commencement from 21-11-01 with a sum assured of Rs.99,000/- and nominated Mrs. Pinumoni Dehingia, the complainant as ‘nominee’. The OP received the death information of Kulen Dehingia and also received death certificate along with other required papers and took all the necessary steps. The OPs stated that deceased Kulen Dehingia did not pay the premium regularly in due time. The policy was lapsed for many years and thereafter on 21-06-07 with the payment of five yearly premium due from November, 2002 to November, 2006 revived the same. The policy again lapsed which was again revived on 14-11-11 with the payment of four yearly premium from November, 2007 to November, 2010. The last revival of the policy was 14-11-11, just only seven days prior to the death of the life assured, Kulen Dehingia for which, death claim under policy, came under the purview of early claim under proviso of section 45 of the Insurance Act, 1938 which, cannot be settled by the Branch i.e. OP No.3, so the matter was referred to the OP No.1 and 2. During the process of the settlement of the claim,  that is, in course of investigation, it has come to light that the life assured,  Kulen Dehingia was a patient of alcoholic who  suffered from Liver cirrhosis, which appears from the case history of the patient deceased, Kulen Dehingia during his treatment prior to his death in Assam Medical College & Hospital, Dibrugarh. As such, it appears that the life assured Kulen Dehingia while reviving the policy prior to seven days of his death concealed the material fact by giving wrong answer to the question in Form No.680-DGH for which, the claim was liable to be rejected and repudiated. However, the settlement of the claim was admitted up to the paid up value period to the date of  revival by setting aside the revival done on 14-11-11 as per provision of LIC rule and therefore there is no deficiency of service on the part of OP No.1,2 and 3. The complaint petition filed by the complainant is liable to be dismissed as the complainant has not approached to the Forum with clean hand. Besides, complainant accepted the payment as full and final settlement of the claim on receipt of payment of Rs.72,454/- without any objection on 24-09-12. In view of the above the OPs 1,2 and 3 prayed to reject the complainant petition and dismiss the case against them with cost.

OP No.4 while  filing the written statement stated inter alia that  he being agent of the OP confined himself only to aware the customers regarding terms and conditions of the policies and to assist the customer to open policies.  As such, in the year 2001 he contracted with the policyholder Sri Kulen Dehingia who intended to open a Life Insurance policy with OP and made him aware about the various LIC policies who finally decided to open a policy namely, ORD on 21-11-01 and he insured his life with worth Rs.99,000/-. OP No-4 only assisted him while filing the proposal form and also making aware about the premium to be paid. In the said policy the deceased Kulen Dehingia incorporated Smti. Pinumoni Dehingia as ‘nominee’. After opening the policy deceased Kulen Dehingia deposited premium from the year 2001 to 2011 i.e. till his death. During the said period the policy became lapse and had to revive the same after complying with the necessary formalities i.e. revival form No-680. At the time of reviving the lapsed policy it is mandatory to medical check up of the policyholder which were duly done to the deceased Kulen Dehingia. The complainant being the nominee here in this present case, he assisted her by providing requisite application form to fill up the same in order to facilitate the complainant to get all the benefits which she is entitled.  The OP No.4 being an agent has nothing to do with regard to the making of any payment of the claim and also has no right and authority to deal with the claim. As such, he prayed to dismiss the case against him.

So far proforma OP No.5 and 6 are concerned, they have submitted their no objection being daughter and son of the deceased, if the remaining amount is released in the name of the complainant.

 In this case complainant gave evidence by swearing affidavit and exhibited as many as 8 (eight) documents in support of her case. on the other hand, OPs No.1,2,3 examined one Sri Binoy Bhushan Dey, Administrative Officer, LIC of India and exhibited as many as 18 (eighteen) documents to rebut the case of the complainant. Proforma OPs have not examined any witnesses.

          DISCUSSION,DECISION AND REASONS THEREOF:

Upon going through the evidence of the complainant and her documentary evidence it is found that deceased husband of the complainant Late Kulen Dehingia during his lifetime purchased a policy bearing No.441506295 dated 21.11.01 for a sum assured of Rs.99,000/- after being paid requisite premium under the scheme namely ORD, wherein the complainant Pinumoni Dehingia was nominated as the nominee of the policy. Ext-3 (vii) is the copy of the said policy. Late Kulen Dehingia during his lifetime paid premiums and also paid the renewal premiums vide Ext-2, 3(i) to (vi). During subsistence of the aforesaid policy Kulen Dehingia expired on 21-11-11 leaving behind his wife Smti. Pinumoni Dehingia as nominee to collect and withdraw the entire benefit of the insurance policy. Ext-1 is the death certificate. After the death of Kulen Dehingia complainant duly informed  about the death of her husband to OPs after filing the claim form and claimed the insurance amount. Ext-6 is the claim form ‘A’. During the course of the persuasion of the claim OP deposited an amount of Rs.72,454/- on 13-12-12 in the Bank account No.123501000001524 maintained by the complainant in the Indian Overseas Bank, Dibrugarh Branch. The OPs instead of depositing entire amount of Rs.3,54,278/- due to the complainant deposited only Rs.72,454/- and deducted Rs.2,81,824/-  without assigning any valid reason as it appears from Ext-4. As such, the complainant on 28-05-13 sent a legal notice through her lawyer to the OPs to pay her remaining amount of Rs.2,81,824/- but, the OPs vide letter dated 30-06-13 informing that they would not pay the remaining amount on the ground that deceased Kulen Dehingia was alcoholic prior to revival of the policy on 14-11-11 and died due to liver cirrhosis.

From the evidence of the OPs No.1,2, and 3 and their documents it is found that they have admitted regarding the purchased of Policy No.441506295 on 21-11-01 with a sum of assured of Rs.99,000/- and also admitted the payment of Rs.72,454/- on 13-02-12 against the claim and also admitted that they have retained the remaining amount on the ground that the life assured Kulen Dehingia was a patient of alcoholic diseased and was suffering from cirrhosis of liver prior to revival of his policy dated 14-11-11 which he did not disclose at the time of revival.

The OP in their evidence stated that life assured Kulen Dehingia did not pay the premium regularly in time. The policy was lapsed for many years which was revived on 21-06-07 with the payment of five yearly premium due from November, 2002 to November, 2006. Thereafter, again policy was lapsed for non-payment of premium which was again revived on 14-11-11 with the payment of four yearly premium from November, 2007 to November, 2010 and that too seven days prior to the death of life assured Kulen Dehingia for which the death claim under policy came under the purview of early claim under provisions of section 45 of the Insurance Act, 1938 which could not be settled and the remaining part was repudiated. As soon as the matter came under purview of early claim the matter was referred to OP No.1 and 2. During the course of investigation by OP No.1 and 2 it has come to light that the life assured, Kulen Dehingia was a patient of alcoholic who suffered from cirrhosis of liver and the matter  came to light from the case history of the patient Kulen Dehingia during his treatment prior to his death in Assam Medical College and Hospital, Dibrugarh. It appears from the investigation Kulen Dehingia while reviving the policy prior to seven days of his death concealed the material fact by giving wrong answer to the question in form No.680-DGH for which his part of the claim was rejected and repudiated U/s 45 of the Insurance Act for not disclosing the material fact at the time of revival of the policy. The settlement of the claim was admitted up to the paid up value prior to the date of revival by setting aside the revival done on 10-11-11 which is established rule of the LIC of India.

From the evidence of OP it is found that the OP alleged that the life assured Kulen Dehingia had concealed the material fact of suffering alcoholic disease i.e. cirrhosis of liver prior to the revival of the policy on 14-11-11 which amount to fraud and misleading and including the active concealment of fact by the deceased having knowledge and belief of the fact. The deceased while reviving the policy has wilfully   concealed the fact. However, legal possession if concerned, the burden of proving above illegal of fraud is only on the part of the OPs i.e. who allege the fraud.   A conclusion of fraud cannot be based merely on speculation or surmise. There will have to be some positive material on the record to draw the conclusion of fraud. Repudiating a insurance claim is not  sufficient for insurer to say that the statement made by the insured recoding health proposal for insurance was incorporated or false. It is surprised to be established  by proving that the statement was on a material fact suppressed which was essential to disclose.

       So, the  question is whether the deceased policy holder knew at the time of making his statement while reviving of his policy that it was false or that he suppressed the material fact which in fact  material to disclose ?

          In this case suppression of material fact by the deceased husband, onus probandi rest heavily on the party alleging fraud. So let us consider whether the OPs have been able to establish that the deceased husband at the time of proposal for insurance had concealed the material fact of alcoholic disease i.e. liver cirrhosis for which the deceased expired.

           In the present case the controversy arises as whether the deceased husband of the complainant had been suffering from alcoholic disease i.e. liver cirrhosis and the cause of death of the husband of the complainant was due to liver cirrhosis. The burden of proving the said pre-existing disease is on the OPs who alleged the concealment of disease. It is admitted fact that concealment or suppression of fact of pre-existing disease at the time of reviving the policy amount to fraud by active concealment U/s 17(2) of the Contract Act. However, the burden of proving the fraud is on the party who allege the same. The OP alleged that the insured had been suffering from pre-existing disease  i.e. liver cirrhosis due to alcoholic at the time of reviving the policy as such, the burden of proving the fact of pre-existing disease is on the insurer.

           In the case of LIC of India vs. Dr.P.S.Agarwal, 2005 CTJ 152 (CP) Hon’ble National Commission relying on the ruling of the Hon’ble Supreme Court of India in the case of Mithoolal Nayak vs. LIC of India AIR 1962 SC 814 as laid down that onus to prove that there was material concealment of any disease which directly prove fatal would be of Insurance Company to justify its act to repudiate the claim. The burden of prove, therefore, is on the insurer to prove material concealment and justify the ground for no claim.

           In the instant case from Ext.7 the medical attendance certificate the cause of death of the husband of the complainant was chronic liver disease with portal hypertension. During investigation the OP collected the history sheet i.e. Ext-G to M from Assam Medical College  and Hospital where it has been referred that the patient was suffering from chronic liver disease with portal hypertension. It may be mentioned here that medical attendance certificate, discharge certificate and history sheet  of the hospital could not be treated as primary piece of evidence to prove any fact unless and until the Doctor who had issued the medical attendance certificate, discharge certificate and history sheet had been produced and recorded his evidence. The primary evidence would be of the Doctor who had recorded the opinion in those exhibits.

         In this connection we may refer the observation made in LIC vs. Dr.P.S. Agarwalla (Supra) which read as follows:

“In this case the Doctor who had recorded  the past history had not been produced, therefore, no reliance can be placed on past history recorded in the bed head ticket.”

       The Insurance Company has not led any evidence to prove that the complainant was suffering from chronic liver disease or liver cirrhosis. Mere producing a copy of history sheet  allegedly issued by Assam Medical College and Hospital is not sufficient to exonerate the Insurance Company from its liability.

        In this case the OPs have failed to prove the Ext- G to M case history sheet  and other by filing affidavits or oral evidence of the concerned Doctor. Without proper prove of such certificate or papers could not be relied upon. The legal position gets support from the case of LIC of India vs. Badri Nageshwaramma 2005 CTJ 487 (CP) and in the case of Surendra Kaur vs. LIC of India 2005 CTJ 1008 (CP). Hon’ble National Commission has held that Doctors opinion based on hospital history or record is not sufficient.

          The OPs have failed to prove any wilful suppression or concealment of suffering by the deceased husband of the complainant previous alcoholic disease i.e. liver cirrhosis. As mentioned above the OPs have failed to produce any evidence except what has been stated in history sheet and the discharge certificate to show that the husband of the complainant was suffering from liver cirrhosis to exclude the claim of the policy U/s.45 of the Insurance Policy Act, 1945.

          For the reasons stated above the repudiation of the claim of the complainant was not justified and the repudiation has been made on the basis of wrong assumption and in arbitrary manner which is amount to deficiency in service on the part of OPs. Hence all the OPs are held jointly and severally liable to pay the compensation. The complainant is entitled to claim the remaining amount of the policy with interest, compensation and the cost.

          Accordingly, the Forum doth order the OPs to pay the remaining amount of Rs.2,81,824/- along with interest @ 9% per annum from the date of filing this case till realisation. Further, the OPs are directed to pay Rs.10,000/- as compensation towards mental harassment and agony caused to the complainant for not settling the claim in time. The OPs are also directed to pay Rs.2000/- for the cost of filing this case. The OPs are directed to pay the aforesaid amounts to the complainant within two months from the date of this judgment through this Forum.

        Send copy of this judgment to the OPs for compliance.