KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO. 711/2009
ORDER DATED: 28-12-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. The Manager,
LIC of India, Divisional Office,
Jeevan Prakash, PB.No.1787,
Kozhikode-1.
: APPELLANTS
2. LIC of India,
Kannur Branch-1, Kannur.
(By Adv.Sri.G.S.Kalkura)
Vs.
P.P.Shahida,
Peedikakandy Parambil, : RESPONDENT
P.O.Narath.
(By Adv:Sri.P.V.Shylajan & D.R.Rajesh)
ORDER
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellants were the opposite parties and respondent was the complainant in CC.33/06 on the file of CDRF, Kannur. The complaint herein was filed alleging deficiency of service on the part of opposite parties in repudiating the insurance claim preferred by the complainant based on the life policy issued in favour of the complainant’s husband, Abdulla. The complainant claimed the insured amount of Rs.2.lakhs with interest at the rate of 12% per annum and compensation of Rs.50,000/- for mental agony and physical pain and cost of Rs.5000/-.
2. The opposite parties entered appearance before the Forum below and filed a joint written version denying the alleged deficiency of service. They justified their action in repudiating the insurance claim vide repudiation letter dated:14/3/2005. It was further contended that the life assured, Abdulla.M.K suppressed material facts while submitting the proposal for the policy and the suppression of material facts regarding his state of health etc are sufficient to repudiate the insurance claim. It was further contended that the life assured was suffering from cardiac rheumatism and he had artificial valve transplantation 2 years prior to the submission of the proposal for the insurance policy and thereby the life assured concealed material facts and gave false answers to the questions put to him in the proposal form; that the life assured died just after 3 months and one day of the date of the policy. Thus, the opposite parties prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1, Exts.A1 and A2 documents were also marked on the side of the complainant. On the side of the opposite parties the Manager, LIC of India, Kannur Branch was examined as DW1. Exts.B1 to B6 documents were also marked from the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:1st October 2009 allowing the complaint and directing the opposite parties to pay the insured amount of Rs.2.lakhs with cost of Rs.500/-. Hence the present appeal.
4. We heard both sides. Learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was suppression of material facts by the life assured while submitting the proposal for the policy. He much relied on Ext.B5 copy of the English translation of the Arabic medical report and submitted that B5 document would establish the suppression of material facts by the life assured. The appellants have also filed I.A.1246/10 for accepting additional documents at this appellate stage. Along with the said petition the appellants/opposite parties produced 4 documents to be marked as Exts.B7 to B10 and submitted that acceptance of additional documents is just and necessary for a proper disposal of the present appeal.
5. On the other hand, the learned counsel for the respondent/complainant supported the impugned order p[assed by the Forum below. He also vehemently disputed the genuineness and correctness of B5 document and submitted that B5 document cannot be accepted in evidence without getting the original of B5 copy (translation). The respondent/complainant has also filed objection to I.A.1246/10 and prayed for dismissal of the aforesaid application filed for receiving additional documents at this appellate stage. Thus, the respondent/complainant prayed for dismissal of the present appeal.
6. The points that arise for consideration are:-
1. Whether there was any deficiency of service on the part of the appellants/opposite parties in repudiating the insurance claim vide repudiation letter dated:14/3/2005?
2. Whether the appellants/opposite parties have succeeded in establishing their case regarding suppression of material facts by the life assured while submitting the proposal for the life policy?
3. Whether the case of the respondent/complainant that the life assured put his signature to the proposal form without knowing the contents of the said proposal for the policy can be accepted?
4. Whether the prayer for acceptance of additional documents at this appellate stage vide I.A.1246/10 can be allowed?
7. Points 1 to 4:-
There is no dispute that the life policy was issued to the complainant’s husband Abdulla.M.K and by the said life policy, the aforesaid M.K.Abdulla’s life was assured for Rs.2.lakhs. Ext.B1 is copy of the said life policy issued in the name of the policy older Abdulla M.K. Ext.B1 copy of the policy would make it clear that the said life policy commenced on 28/8/2003 and the complainant, P.P.Shahida is shown as the nominee of the life assured. There is no dispute that the complainant is the nominee and wife of the life assured, Abdulla.M.K.
8. Admittedly the life assured Abdulla.M.K. died on 29/11/2003. It can be seen that the life assured died after 3 months and one day of the commencement of the life policy. Ext.B4 is translation of the death certificate issued by Embassy of India, Riyadh. As per B4 death certificate, the life assured M.K.Abdulla died on 29/11/2003 at Al-Mana general Hospital, Al-Khobar. The cause of death is recorded as severe failure of blood and breath circulation (heart attack). B4 death certificate is not disputed by the parties to the complaint in CC.33/06.
9. After the death of the life assured an insurance claim was preferred by the respondent/complainant being the nominee of the life assured. The aforesaid insurance claim was repudiated by the opposite party/insurance company by the repudiation letter dated:14/3/2005. Ext.B3 is copy of the repudiation letter dated:14/3/2005. The reason or ground stated in B3 repudiation letter is that the life assured withheld correct information regarding his health at the time of effecting the policy. It is further stated that the life assured gave false answers while submitting the proposal for the policy; that the life assured gave false declarations in the proposal for the policy; that the life assured made incorrect statements and withheld correct information from the LIC regarding the health at the time of effecting assurance. After getting the B3 repudiation letter the complainant issued A1 lawyer notice dated:28/4/2005 demanding the insured amount with interest and cost. The opposite party, LIC of India issued A2 reply notice reiterating their stand that there was suppression of material facts regarding the health condition of the life assured while submitting the proposal for the policy. Thus, the opposite parties justified their action in repudiating the insurance claim. Hence the complaint in CC.33/06 on the file of CDRF, Kannur.
10. Ext.B2 is the proposal for the insurance submitted by the life assured, Abdulla M.K. The aforesaid proposal is dated: 21st August 2003. The respondent/complainant admitted the submission of B2 proposal dated:21/8/2003 by the life assured Abdulla M.K. The complainant has also admitted the signature of the life assured in the said proposal for the policy. A perusal of the aforesaid proposal submitted by the life assured, Abdulla M.K would make it crystal clear that the life assured had clearly stated about his state of health at the time of submission of the proposal for the policy. The answers given to the questions which are enumerated in the proposal form were to the effect that the life assured was not having any sort of illness and that he had no occasion during the last 5 years to consult a medical practitioner for any ailment requiring treatment for more than a week. It was also answered that the life assured was in a state of good health and he had not undergone any treatment pertaining to liver, stomach, heart, kidney, brain or nervous system. Along with the aforesaid proposal, the life assured had also given declaration stating that he has given only true and correct statements and answers in the said proposal and that in the event it is found that the statements given in the proposal are incorrect or that any information has been withheld, the said contract of insurance shall be absolutely null and void and all moneys paid to the LIC of India shall stand forfeited to the corporation. The aforesaid declaration has been signed by the life assured in the presence of the LIC agent Deepthi Rajan. The LIC agent has also affixed her signature as a witness to the said declaration. It can also be seen that the LIC agent has also declared that she fully explained the Questions and Answers to the proposor and the same have been truthfully recorded. The aforesaid declaration was also signed by the LIC agent. So, the case of the respondent/complainant that the life assured Abdulla M.K. had only put his signature in the proposal form and that the proposal form was filled by the LIC agent and that the life assured was not aware of the contents of the proposal cannot be believed or accepted.
11. It is to be noted that the complainant has no case that the life assured Abdulla M.K put his signature in the declaration without knowing the contents of the declaration. It is also to be noted that the respondent/complainant has no case that the life assured Abdulla M.K was not in a position to understand the consequence of the declaration or what has been declared by the life assured. In the absence of any such case for the complainant it can only be concluded that the life assured, Abdulla M.K affixed his signature to the proposal after fully understanding the contents of the same. It can very safely be concluded that the life assured put his signature to the proposal by fully knowing the consequences of giving such a declaration regarding the correctness of the informations furnished in the proposal for the policy.
12. The complainant as PW1 has categorically admitted that the proposal was filled by the LIC agent in the presence of the life assured. It can be seen that the LIC agent filed up the proposal in the presence of the life assured. It can also be seen that PW1 (complainant) came to the seen only at the time of affixing the signature by the life assured. It is also to be noted that the details incorporated in the proposal form would show that it was impossible for the LIC agent to fill up the proposal form without the assistance and co-operation of the life assured. Those details were only known to the life assured. It can also be seen that the details regarding the place of employment, details of the salary, annual income etc were within the knowledge of the life assured. The aforesaid details incorporated in the proposal for the policy would make it clear that the LIC agent filled the proposal with the details furnished by the life assured. So, the case of the respondent/complainant that the proposal form was filled by the LIC agent and that the life assured only put his signature and that the life assured was not aware of the contents of the proposal cannot be believed for a moment. On the other hand, the facts, circumstances and materials on record would make it clear that the life assured was fully aware of the contents of the proposal and that the life assured Abdulla M.K. affixed his signature to the proposal and the declaration thereon by fully understanding the consequences of giving such a proposal with declarations thereon. The evidence of PW1 would also give a clear indication that the proposal for the policy was given by the life assured. The said answers given in the proposal would bind the proposor, viz, the life assured M.K.Abdulla.
The material point for consideration is as to whether the life assured had given false answers and incorrect informations regarding his health condition while submitting the proposal for the policy. It can be seen that the life assured gave the proposal stating his health condition as good and he had also given the answers to the effect that he had not undergone any treatment for any illness and he had no occasion to undergo any treatment pertaining to his heart, liver or other important organs of the body. The appellants/opposite parties much relied on B5 combined medical report (death) dated:6/12/2003. It is to be noted that B5 is only photocopy of English translation of medical report issued in Arabic. It is to be noted that the original translation was not produced before the Forum below. It is further to be noted that the appellants/opposite parties had also failed to produce the original combined medical report dated:6/12/2003. It is pertinent to note that the original combined medical report is in Arabic. Without getting the original document how can a translation of the same can be relied on. Moreover the original translation was not available before the Forum below. It is also to be noted that the respondent/complainant has disputed the genuineness and correctness of B5 document. Then, it was incumbent upon the opposite parties (LIC) to prove Ext.B5 document. Unfortunately, appellants/opposite parties failed to prove Ext.5 document. They failed to produce the original of B5. They also failed to produce the original document itself. Admittedly, the original combined medical report is in Arabic. That document in Arabic is not available for scrutiny or perusal. The appellants/opposite parties have also failed to examine the translator who had occasion to translate the document which is in Arabic. So, the Forum below can be justified in not relying on Ext.B5 photocopy of the translation of a document which is in Arabic.
The respondent/complainant has not admitted B5 document. On the other hand, she has disputed the genuineness and correctness of B5 document. It is true that B5 document would show that the life assured Abdulla M.K had been suffering from cardiac rheumatism and he had artificial valve transplantation 2 years back and he was under the treatment against thrombosis for long time by applying penicillin. It is also reported in B5 that there was sign of operation undergone earlier and the said signs were visible in front part of the chest. Thus B5 document would give an indication that the life assured had heart diseases even at the time of submitting the proposal for the life policy. It would in turn support the case of the appellants/opposite parties regarding suppression of material facts and furnishing of incorrect information while submitting the proposal for the policy. But all those conclusions can be arrived at only in the event it is found that B5 is an acceptable document. The evidence available on record would show that B5 document cannot be relied on. Appellants/opposite parties have not succeeded in proving B5 document.
There can be no doubt about the proposition that the burden is upon the insurance company to substantiate the case of suppression of material fact. It is to be noted that the life policy issued by the LIC of India in the name of the policy holder Abdulla M.K. is admitted. It is also an admitted fact that the life assured died on 29/11/2003 after a lapse of 3 months of taking the policy dated:28/8/2003. The LIC of India repudiated the insurance claim preferred by the complainant as the nominee of the life assured. The ground stated for repudiation of the insurance claim is suppression of material facts while submitting the proposal for the policy. Then, the burden is heavily upon the insurer to substantiate the alleged suppression of material facts. The opposite party/LIC of India produced B5 photocopy of the translation of a document which is in Arabic. But the person who issued the translation of the Arabic document has not been examined. Even in B5 document it is stated that the aforesaid translation was made from the photocopy. This circumstance would give an indication that the translator had no occasion to see or peruse the original document. In fact the translator was given only the photocopy of the original document which is in Arabic. If that be so, the true translation also cannot be relied on. So, the B5 document would not strengthen the case of the appellants/opposite parties regarding suppression of material facts by the life assured.
Appellants/opposite parties filed I.A.1246/10 for receiving additional documents at this appellate stage. Along with the aforesaid inter locutory application, 4 documents are produced by the appellants. The 1st document is the claim statement filed by the respondent/complainant for getting the insured amount of Rs.2,00,000/-. There is no dispute regarding the aforesaid claim statement filed by the complainant in CC.33/06. The second document is the death certificate issued from Embassy of India, Riyadh. As per the said document, the life assured Abdulla M.K died on 29/11/2003 at Saudi Arabia. There is also no dispute regarding the said death certificate issued by Embassy of India, Riyadh. The 3rd document is the letter dated:17th January 2005 issued by Abdullah Mohd Al-Shaigi, Finance & Administration Manager, Aujan Soft Drink Industries. The aforesaid letter is accompanied by the details of the amount given to the life assured, Abdulla Kovval. The 4th document is the English translation of the combined medical report (death) dated:6/12/2003. The 4th document would make it clear that it is only English translation of an Arabic document. It would also show that it was translated from photocopy of a document which is in Arabic language. This would also show that the original document was not available for true translation. So, even if the additional documents are received in evidence it is not possible to come to a conclusion that the life assured had undergone treatment for heart diseases or that the life assured Abdulla M.K was having cardiac rheumatism and he had transplantation of heart valve 2 years back. So, the case of the appellants/opposite parties cannot be accepted as such.
The materials on record would show that the appellants/opposite parties have not succeeded in establishing their case regarding suppression of material facts by the life assured while submitting the proposal for the policy. The appellants have got a case that they were not given sufficient opportunity to adduce evidence in support of their contentions regarding suppression of material facts by the life assured while submitting the proposal for the policy. The appellants have also got a case that the original of B5 document which is in Arabic was produced by the respondent/complainant and that the appellant/opposite party (LIC of India) returned the original on getting the English translation of the document. But the respondent/complainant disputed the said case of the appellants/opposite parties. It is also to be noted that the appellants/opposite parties had no such case in their written version. So, this is a fit case to be remitted back to the Forum below for affording an opportunity to the appellants/opposite parties to substantiate their case regarding suppression of material facts by the life assured while submitting the proposal for the life policy. It is to be noted that the appellants/opposite parties can very well call for the original combined medical report (death) issued by the Ministry of Health, Kingdom of Soudi Arabia. The original of that document can also be obtained through the Indian Embassy at Riyadh. The opposite parties can also obtain a true English translation of the same and the translation can be proved by examining the person who translated the document. So, the matter is remitted back to the Forum below for affording an opportunity to the appellants/opposite parties to substantiate their case regarding suppression of material facts.
The Forum below cannot be justified in allowing the complaint by finding fault with the appellants/opposite parties in not getting the 2nd declaration from the life assured. The aforesaid finding made by the Forum below is legally unsustainable. It can also be seen that the Forum below has not relied on the documentary evidence especially the documentary evidence adduced from the side of the opposite parties. The Forum below cannot be justified in ignoring the documentary evidence available on record. The Forum below also failed to appreciate the evidence available on record. Thus, on that count also the impugned order passed by the Forum below is liable to be set aside and the matter is to be remitted back to the Forum below for fresh disposal of the same on merits, after giving opportunity to both parties to substantiate their respective pleadings.
The complainant has got a case that the policy was issued without conducting medical examination. At the same time, respondent/complainant has also got a case that the policy was issued after medical examination by a panel doctor of LIC. Ext.B6 document would show that the life assured was subjected for medical examination by the panel doctor of the LIC. It is true that B6 medical examination report would give an indication that the life assured had no such ailment at the time of submitting the proposal for the policy. It is to be noted that B6 report would also give an indication that the said report was given by the panel doctor based on the opinions and answers given by the life assured. The mere fact that the panel doctor of LIC issued a medical report finding the proposor fit for getting the life policy cannot be taken as a ground to hold that the LIC is not competent to repudiate the insurance claim, if it is found that there was suppression of material facts regarding the state of health while submitting the proposal by the life assured. Thus, in all respects, this is a fit case to be remitted back to the Forum below for disposal of the same on merits. These points are left open for the fresh consideration by the Forum below.
In the result the appeal is allowed to the extent that the matter is remanded to the Forum below for fresh consideration and disposal of the same on merits. The impugned order dated:1-10-2009 passed by the CDRF, Kannur in CC.33/06 is set aside. It is made clear that both the parties are at liberty to adduce further evidence in support of their respective pleadings. The Forum below is also directed to consider the additional documents produced by the appellants/opposite parties as per I.A.1246/10. The parties are directed to appear before the Forum below on 29/1/2011.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
