KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 595/2009
JUDGMENT DATED:19-10-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. The Senior Divisional Manager,
Life Insurance Corporation of India,
LIC of India, Divisional Office,
Jeevan Prakash, Pattom,
Post Box No.1001, TVPM.
: APPELLANTS
2. Branch Manager,
Branch Office of LIC,
Kasthurbai Building,
Pulamon Junction, Kottarakkara.
(By Adv.Sri.G.S.Kalkura)
Vs.
Razia Beevi,
W/o Late Sri.A.Mohammed Mustafa,
R.V.House Kollayil, Madathara.P.O, : RESPONDENT
Kollam.
(By Adv.Sri.Dinesh Sajan)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The appellants were the opposite parties 1 and 2 and respondent was the complainant in OP.599/01 on the file of CDRF, Kollam. The complaint in the said OP.No.599/01 was filed alleging deficiency of service on the part of the opposite parties 1 and 2 (LIC of India) in repudiating the insurance claim preferred by the complainant as nominee of the life assured, Late Sri.A.Muhammed Mustafa. The opposite parties 1 and 2 entered appearance and filed written version denying the alleged deficiency of service. They contended that the life assured, A.Muhammed Mustafa concealed and suppressed material facts regarding his health condition while submitting the personal statement for getting the lapsed policy revived on 24/6/1999. It was contended that from 1/4/1999 the life assured, A.Muhammed Mustafa was suffering from recurrence of pulmonary Tuberculosis and Diabetes Mellitus and that he underwent treatment as inpatient in Medical College Hospital, Thiruvananthapuram as inpatient No.1008; that the life assured was a Psychiatric patient and he underwent treatment for the same at Medical College, Hospital before reviving the said policy. Thus, the opposite party justified their action in repudiating the insurance claim.
2. Both parties adduced evidence before the Forum below and thereby the Forum below allowed the complaint in OP.599/01 directing the opposite parties(LIC of India) to pay the insurance amount of Rs.1;lakh to the complainant with interest at the rate of 9% per annum from the date of complaint and also to pay Rs.1000/- as compensation and costs. Aggrieved by the said order passed by the Forum below, the appellants herein (opposite parties 1 and 2) preferred Appeal No.215/2004 before the State Commission. This State Commission vide judgment dated:29/9/2008 in Appeal No.215/04 remanded the matter to the Forum below for affording opportunity to the appellants/opposite parties to adduce evidence in support of their case regarding suppression of material facts by the life assured while submitting the revival statement on 24/6/1999. After the aforesaid remand of the matter, the parties appeared before the Forum below. The opposite parties 1 and 2 (LIC of India) examined DW2 and got the treatment records from HDC Sanatorium for Chest Diseases, Pulayanarkotta marked as Ext.X1. After closure of the evidence for the opposite parties, the Forum below heard both parties and passed the impugned order dated; 29th June 2009. Thereby the complaint in OP.599/01 is allowed directing the opposite parties to pay to the complainant Rs.1.lakh with 9% interest from the date of filing of the complaint with Rs.1,000/- by way of compensation and costs. It is against the said order the present appeal is filed by the opposite parties 1 and 2 therein.
3. We heard both sides. The learned counsel for the appellants/opposite parties 1 and 2 submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the testimony of DW2 and Ext.X1 case sheet and argued for the position that from 1/4/1999 onwards the life assured A.Muhammed Mustafa was suffering from Pulmonary Tuberculosis and he had undergone treatment at Medical College Hospital. Thiruvananthapuram for the aforesaid ailments. The learned counsel for the appellants argued for the position that the life assured suppressed material facts regarding his state of health while submitting the revival statement on 24/6/1999. Thus, the appellants justified their action in repudiating the insurance claim preferred by the respondent/complainant as nominee of the life assured A. Muhammed Mustafa. On the other hand, the learned counsel for the respondent/complainant supported the impugned order dated:29/6/2009 passed by CDRF, Kollam. He relied on the testimony of the complainant as PW1 and the other documentary evidence adduced from the side of the complainant and argued for the position that the complainant has totally denied the allegation regarding the treatment undergone by the life assured at Medical College Hospital, Thiruvananthapuram for pulmonary tuberculosis. It is further submitted that the appellants/opposite parties failed to prove Ext.X1 case sheet and that DW2 is not competent to depose about X1 case sheet. Thus, the respondent/complainant prayed for dismissal of the present appeal.
4. Points that arise for consideration are:-
1. Whether the appellants/opposite parties (LIC of India) have succeeded in establishing their case regarding suppression of material facts regarding the state of health of the life assured, A.Muhammed Mustafa while submitting the revival statement?
2. Whether there was any deficiency of service on the part of the appellants/opposite parties in repudiating the insurance claim preferred by the respondent/complainant being the nominee of the life assured, A.Muhammed Mustafa who died on 2/8/2000?
3. Is there any legally sustainable ground to interfere with the impugned order dated:29/6/2009 passed by CDRF, Kollam in OP.599/01?
5. For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum below in OP.599/01.
6. Point Nos:1 to 3
There is no dispute that the complainant’s husband, Late Sri.A.Muhammed Mustafa was holding a valid life policy for Rs.1.lakh with policy No.781720600. Ext.D1 is the aforesaid policy which was issued in the year 1997 and thereafter the said life policy became lapsed due to default to pay the quarterly premiums. Admittedly the lapsed policy was revived on 24/6/1999 by remitting the renewal premium. Ext.P3 is the renewal premium receipt dated:24/6/1999. After the renewal of the said policy on 24/6/1999, the life assured, Muhammed Mustafa used to remit the quarterly premiums and the said policy was effective till the death of the life assured, Sri. A. Muhammed Mustafa on 2/8/2000. The complainant is the nominee of the life assured, Sri. A. Muhammed Mustafa. After the death of the life assured Sri. A. Muhammed Mustafa, the insurance claim was preferred by the complainant being the widow and nominee of the life assured. The aforesaid insurance claim was repudiated by the 1st opposite party vide Ext.P5 repudiation letter dated:12/4/2001. The complainant had also preferred an appeal petition to the 1st opposite party to reconsider her claim for the insurance amount. Thereafter, the complainant preferred the complaint in OP.599/01 for getting the insurance amount from the opposite parties 1 and 2. The complainant alleged deficiency of service on the part of opposite parties 1 and 2 in repudiating her insurance claim.
7. The opposite parties 1 and 2 filed written version denying the alleged deficiency of service. They contended that the life assured Sri. A. Muhammed Mustafa suppressed material facts regarding his state of health while submitting the revival statement for getting the lapsed policy revived. On the said ground of suppression of material facts, the opposite parties justified their action in repudiating the insurance claim.
8. The definite case of the opposite parties 1 and 2 (LIC of India) is that the life assured was suffering from pulmonary tuberculosis since 1/4/99 and that life assured Sri. A. Muhammed Mustafa was also a psychiatric patient and had undergone treatment for that mental illness from Medical College Hospital, Thiruvananthapuram. It is the case of the opposite parties that the life assured Sri. A. Muhammed Mustafa suppressed the aforesaid material facts regarding his state of health and treatment undergone from 1/4/1999 while submitting the revival statement on 24/6/1999. The aforesaid personal statement regarding health submitted by the life assured Sri. A. Muhammed Mustafa has been produced from the side of the opposite parties along with medical examiner’s confidential report dated:24/6/1999. The complainant as PW1 has admitted the submission of the aforesaid personal statement regarding health dated:24/6/1999. It is true that in the said personal statement submitted for getting the lapsed policy revived, it has been stated that the life assured Sri. A. Muhammed Mustafa had not undergone any treatment and that he was not suffering from tuberculosis, heart disease or any other disease affecting the stomach, liver, spleen, Kidney, urinary system, cancer, leprosy, nervous system etc. Then it is for the opposite party (LIC of India)to establish that the statements given in the aforesaid personal statement regarding health was false or that the life assured suppressed material facts regarding his health while submitting the aforesaid statement dated:24/6/1999.
9. The complaint in OP.599/01 was once allowed by the Forum below directing the opposite party/LIC of India to pay the insured amount of Rs.1.lakh with interest and cost. The opposite party/LIC of India preferred appeal to this State Commission as Appeal No.215/04. This State Commission vide judgment dated:29/9/2008 in the said Appeal.215/04 afforded one more opportunity to the opposite parties to substantiate their case regarding suppression of material facts by the life assured while submitting the revival statement dtd:24/6/1999. It is thereafter, the opposite parties examined DW2, the Assistant Professor, Department of Pulmonary Medicine, Medical College Hospital, Thiruvananthapuram and through DW2, Ext.X1 case sheet with respect to the patient with I.P.No.1008/99 was marked. But DW2 has not spoken to anything about the contents of X1 case sheet. The said witness has also deposed that the patient referred to inX1 case sheet was never treated by him. It is further deposed by DW2 that Dr.Fathahutheen who treated the patient is still in service. DW2 has also deposed that X1 is the case sheet with respect to the inpatient No.1008/99 maintained at Pulayanarkotta, Sanatorium for Chest Diseases. It is pertinent to note at this juncture, that DW2 has not deposed that X1 case sheet is related to the complainant’s husband Sri. A. Muhammed Mustafa. There is nothing on record to show that X1 case sheet is related to the treatment undergone by the life assured, Sri. A. Muhammed Mustafa. A perusal of X1 case sheet would give an indication that one Sri. A. Muhammed Mustafa aged 52 was treated as an inpatient at Sanatorium for Chest Diseases, Pulayanarkotta on 1/4/1999 and he was treated as an out-patient. It would further show that the aforesaid Sri. A. Muhammed Mustafa with I.P.No.1008 was admitted in that Sanatorium for Chest Diseases, Pulayanarkotta on 1/4/1999. But the date of discharge is not mentioned in the case summary and doctor’s orders. It would further show that the aforesaid patient, Sri. A. Muhammed Mustafa had also treated as an out patient on 8/4/1999, 10/4/99 and 13/4/99. There is also no evidence forthcoming to show that the aforesaid patient was suffering from pulmonary tuberculosis. DW2 has not whispered anything about the pulmonary tuberculosis or any other diseases affected by the patient Sri. A. Muhammed Mustafa. More over, there is nothing on record to show that the life assured Sri. A. Muhammed Mustafa had undergone treatment at the Sanatorium for Chest Diseases, Pulayanarkotta on 1/4/1999 or on any subsequent dates. Thus, in effect X1 case sheet and the evidence of DW2 would not support the case of the opposite parties regarding the alleged suppression of material facts by life assured Sri. A. Muhammed Mustafa while submitting the revival statement regarding his state of health.
10. The complainant as PW1 categorically denied the suggestion regarding the alleged disease of pulmonary tuberculosis or any other disease affected her husband Sri. A. Muhammed Mustafa. She categorically deposed that the life assured Sri. A. Muhammed Mustafa was not suffering from any such diseases at the time of submitting the proposal for the insurance policy or at the time of submitting the revival statement for getting the lapsed policy revived. PW1 emphatically denied the suggestion that the life assured undergone treatment at Medical College Hospital, Thiruvananthapuram for tuberculosis or any other diseases. In the light of the evidence of PW1, the opposite parties were bound to establish their case regarding suppression of material facts. It was the bounden duty of the opposite parties to substantiate their contention that the life assured Sri. A. Muhammed Mustafa was suffering from pulmonary tuberculosis or any other diseases since 1/4/1999. It is a settled position that the burden of proof regarding suppression of material facts is upon the insurer. But the opposite party (LIC of India) being the insurer of the life policy failed to discharge the burden of proof cast upon them.
11. The life policy in the name of Sri. A. Muhammed Mustafa was issued in the year 1997 and the said policy was valid and effective on 2/8/2000, the date on which the life assured Sri. A. Muhammed Mustafa died. It can be seen that the life policy had covered the statutory period of 2 years on the death of the life assured. By virtue of Sec.45 of the Insurance Act, the burden of proof is heavily upon the insurance company to substantiate the alleged fraudulent concealment or purposeful concealment of material facts by the life assured. It is a well settled position that fraud or suppression is to be pleaded and proved by the party who alleges the same. In the present case on hand, the opposite parties (LIC of India) alleged fraudulent concealment of material fact regarding the state of health of the life assured while submitting the revival statement on 24/6/1999. Then, it is for the opposite party/LIC of India to substantiate their contention by adducing cogent and acceptable evidence that there was fraudulent suppression of material fact or facts by the life assured. It is to be noted that the policy will relate back to the date of issuance of the policy, after getting the lapsed policy revived. So, the period of 2 years referred to under section 45 of the Insurance Act is to be computed from the year 1997, the year in which the life policy was issued in the name of the life assured, Sri. A. Muhammed Mustafa. In all respects, the opposite parties miserably failed in establishing their case regarding suppression of material facts while submitting the revival statement on 24/6/1999. It is further to be noted that the opposite party/LIC of India had no occasion to rescind the contract of insurance during the lifetime of the policy holder. It is also to be noted that the opposite party/LIC of India repudiated the insurance claim when the claim was preferred by the complainant being the widow and nominee of the life assured, Sri. A. Muhammed Mustafa.
12. Another aspect to be noted at this juncture is medical examiner’s confidential report (Ext.D2) dated:24/6/1999 submitted by the approved Panel Doctor of the LIC of India. In Ext.D2 medical examiner’s confidential report it is categorically reported that the approved Panel Doctor examined the life assured on 24/6/1999 and he was convinced that the life assured is not having any abnormality of cardio vascular system that the life assured was not having any enlargement of thyroid lumb or glands; that the life assured is not having any abnormality on examination of mouth, nose, throat and eyes. It is specifically reported that on examination, no symptoms or signs suggesting abnormality or disease of the respiratory system. Thus, D2 medical examiner’s report would suggest that the life assured was not suffering from any respiratory disease like pulmonary tuberculosis. Thus, D2 medical report would negative the case of the opposite parties that the life assured was suffering from tuberculosis while submitting the revival statement on 24/6/1999. It is also to be noted that the opposite parties have no case that the life assured won over the doctor in issuing D2 medical report. The opposite parties have no case that D2 medical report was issued by their approved Doctor without examining the life assured. In such a situation, it can only be held that D2 medical report was submitted by the approved Doctor of the LIC of India after careful examination of the life assured. D2 report would also make it clear that the doctor who issued the said report examined the life assured with respect to his pressure, pulse, expiration and inspiration. Had there been any such disease of pulmonary tuberculosis affected the life assured Sri. A. Muhammed Mustafa, that fact could have been easily detected by the doctor who examined the life assured on 24/6/1999. Hence, this State Commission have no reluctancy in discarding the case of the opposite parties regarding the state of health of the life assured on 24/6/1999, the date on which the revival statement was submitted by the life assured. It can very safely be held that there was deficiency of service on the part of the opposite parties in repudiating the insurance claim preferred by the complainant being the widow and nominee of the life assured Sri. A. Muhammed Mustafa. The Forum below is perfectly justified in directing the opposite parties to pay the life assured a sum of Rs.1.lakh with interest at 9% per annum from the date of the complaint till realization with Rs.1,000/- by way of compensation and cost. The impugned order passed by the Forum below is confirmed. These points are answered accordingly.
In the result the appeal is dismissed. The impugned order dated:29/6/2009 passed by CDRF, Kollam in OP.599/01 is confirmed. As far as the present appeal is confirmed, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
