(Delivered on 21/04/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.

1.         Appellant- Life Insurance Corporation of India, has preferred the present appeal   challenging the impugned order dated 20/02/2017 passed by the learned District Consumer Commission, Gondia in Consumer Complaint No. 29/2015, whereby the complaint filed by the complainants/respondents came to be partly allowed and appellants/O.Ps.were directed to pay  sum of Rs. 65,000/- for the Policy  No. 973691605  and Rs. 1,25,000/- in Policy No. 973744747 along with interest  at the rate of 9% p.a. (Appellants shall hereinafter be referred as O.P. and respondents as Complainants for the sake of convenience).

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant No.1- Smt. Meenakshi Thakre is the wife of deceased Mahipal Thakre. Complainant No. 2- Mr. Gaurav Thakre is the son of deceased Mahipal Thakre. Complainant No. 3- Mr. Prashant Mahipal Thakre and complainant No. 4- Mr. Pankaj Mahipal Thakre are the sons  of deceased  Mahipal Thakre from  the  first wife. The complainant Nos. 1&2 have  alleged that  deceased Mahipal Thakre who was working  as Block Development  Officer in Panchyat Samittee, Tiroda, Zilla Parishad, Gondia and during  his  life time he had taken  five  Life Insurance Policies, details of which  are given in the  complaint. Complainants have contended  that  the Opposite Party - Life Insurance Corporation  of India has  paid the  sum assured to the nominees in polices  at Sr. No. 1 to 3 but has  rejected the  polices  in respect of complainant Nos. 1- Smt. Meenakshi Mahipal Thakre  and complainant No. 2- Mr. Gaurav  Mahipal Thakre at Sr. No. 4&5. Complainants have alleged that  the Life Insurance  Policies  issued in the name of the present  complainant Nos. 1&2 had come to be rejected  on the sole ground of  suppression of material facts.  The complainants thereafter also lodged the appeal before the Divisional Officer, Life Insurance Corporation of India on 07/09/2013 but the same was also dismissed. The complainants  were therefore left with  no option but to file the present Complaint  under the Provisions of Consumer Protection Act, 1986 alleging  deficiency  in service on the part of the O.P. namely  Life Insurance Corporation of India.

3.         O.P.Nos.1&2 have resisted the complaint  by filing  detailed reply on record.  O.P. has admitted that deceased Mahipal Thakre died on 25/04/2011 and also that the complainant No. 1- Smt. Meenakshi Thakre was the legal Wedded wife of deceased Mahipal Thakre. The O.P. has denied that deceased Mahipal Thakre was having two sons from his second wife or that the complainant No. 1 was the second wife of the deceased Mahipal Thakre.

4.         At the outset, the O.P. has contended that there was no deficiency in service as complainant has suppressed the material facts from the Life Insurance Corporation of India. The O.P. has contended that deceased Mahipal Thakre had taken policies at Sr. No. 1 to 3 are three years prior to his death and therefore there was no question for conducting any enquiry regarding the same. According to the O.P. while taking the policy No. 9736691605 on 20/04/2009 and police No.  973744747 on 24/12/2009. The complainant had given undertaking that the information given  by him was true and correct. The O.P. has contended that  the complainant  had suppressed the material fact that  he was  suffering  from ‘Hyper Tension (H.T) and Diabetes Mellites (DM) with contusion with Oedema’  and for that purpose  he was taking   treatment  from 06/06/2006 to 17/06/2006  in Gautam Super Specialty Hospital  & Research Institute, Nagpur. The complainant had also suppressed that about three years prior to   the month of August-2010 he was suffered Chronic Pancreatitis. The O.P. has contended that   had  making  enquiry  it was found that  the complainant  was admitted  in S.B. Government  Hospital  from 01/03/2011 to 08/03/2011 in action  with  D.M with PBT. The complainant had also suppressed the fact that he had also taken medical leave due to said illness.  The O.P. had contended that the complainant had suppressed the material facts about his own health at the time of taking of the policies and so as per  rule No. 5 of the terms and conditions in the policy  the O.P.  was entitled to reject the polices.  There was no deficiency  in service on the part of the O.P. Nos. 1&2 and  so the complaint  filed by  the complainants  under the Consumer Protection Act, 1986 deserves to be dismissed with costs.

5.         The learned District Consumer Commission, Gondia thereafter recorded the evidence led by the complainants as well as O.Ps.  The learned District Consumer Commission, Gondia also went through the documents and notes of argument filed by the complainants and O.Ps. On the basis of the fact stated above, the learned District Consumer Commission, Gondia gave  a finding  that there was  no  suppression  of material facts on the part of the  complainant  while taking  the life insurance  policies. As such  the learned District Consumer Commission, Gondia  partly allowed the complaint  filed by the  complainants and directed the O.P. Nos. 1&2 to pay sum of Rs. 65,000/- as per  policy  No. 973691605   and Rs. 1,25,000/- as per policy No. 973744747 along with interest  at the rate of 9% and Rs. 10,000/- towards mental and physical  harassment  and Rs. 5,000/- towards  litigation expenses.  Against this judgment and order dated 20/02/2017 passed by the learned District Consumer Commission, Gondia, the appellant /O.P. has come up in appeal.

6.         We have heard Mr. N.K. Ghagarkar, learned advocate for the appellant and Mr. Harinkhede, learned advocate for the respondents. At the outset,  Mr. N.K. Ghagarkar, learned advocate for the appellant  has submitted that  the learned District Consumer Commission, Gondia has not properly  appreciated  the evidence   adduced on record in proper  perspective  and hence  committed error  in giving   findings. On the other hand, Mr. Harinkhede, learned advocate for the respondents has supported the findings given  by the learned District Consumer Commission, Gondia. Mr. N.K. Ghagarkar,  learned advocate  has raised  several  contentions  in support of  Appeal and  we will deal with them one by one.

7.         Prior to dealing with the rival contentions, it is necessary to mention certain undisputed facts.  It is not  in dispute  that  deceased Mahipal Thakre had taken  as much  as five  life insurance policies during his life time but  complainant No. 1- Smt. Meenakshi Mahipal Thakre   and complainant No. 2- Mr. Gaurav Thakre were nominees  in only two  policies bearing Nos. 973691605 and 973744747 for sum of Rs. 65,000/- and Rs. 1,25,000/-  respectively which  are subject  matter of present  complaint. There is also no dispute that the O.P. had paid the  sum assured in the three policies but rejected the claim of the complainant Nos. 1&2 in respect of two policies mentioned above on the ground of suppression of material  facts.

8.         Coming now to the first contention advanced by  Mr. Ghagarkar, learned advocate for the appellant,  it is submitted by him that while  taking the policies one questionnaire   was supplied  to  deceased Mahipal Thakre  in respect of his  previous illness or  diseases and Mahipal Thakre had answered  question Nos. 11-a to 11-h  in negative and 11-i as good relating  to  his  present  health. Mr. Ghagarkar, learned advocate for the appellant  has contended  before us that  no investigation  was conducted  in respect of policy  at Sr. Nos.. 1 to 3 but  investigation  was conducted  in respect of policy Nos. 4&5 and it was found that deceased Mahipal Thakre had met with  vehicular accident  and was admitted  in Government Medical College and Hospital  and was on medical leave  from 26/02/2004 to 03/03/2004. Further it was also found that the deceased Mahipal Thakre was also suffering from Chronic Pancreatitis,  Alcoholic Liver Disease and Diabetes Mellites.  and other  ailments.  In this connection  Mr. Ghagrakar, learned advocate for the appellant  has firstly  drawn our attention  to the copy of  questionnaire filled  by the deceased Mahipal Thakre pertaining  to his health and thereafter Mr. Ghagrakar, learned advocate for the appellant  has also drawn our attention  to various  documents namely medical certificates issued by Gautam Super Specialty Hospital  & Research  Institute, Nagpur and also by Dr. Ashish Neware as well as  other  documents. In  view of the submissions  made by  learned advocate for the appellant, we have gone though  the copy of questionnaire regarding  deceased  suffering from  previous illness and  the deceased  Mahipal Thakre has answered  the question No. 11-a to 11-h in negative and  11-i as good.  Further the deceased had also given a declaration regarding his good health. 

9.         Initially the learned advocate for the appellant has submitted that deceased Mahipal Thakre was admitted in Government Dental Medical College, Nagpur for oral and maxillofacial surgery and  was  indoor patient. He was also on leave from 04/03/2004 to 26/03/2004.  Secondly, the deceased had undergone surgery for head injury and  were suffering from Diabetes Mellites with contusion with Oedema and was indoor patient in Gautam Super Specialty Hospital & Research Institute, Nagpur from 06/06/2006 to 17/06/2006. Further  the learned advocate  for the appellant has pointed out that  the deceased  Mahipal Thakre  was suffering  from  Chronic Pancreatitis since  three years prior to August 2010 and Dr. Ashish Neware had confirmed acute attack  of Chronic Pancreatitis  with known case of Chronic Pancreatitis since three years  Mr. Ghagarkar, learned advocate for the appellant  has also drawn our attention  to the various  medical certificates  issued by Gautam Super Specialty  Hospital  & Research  Institute, Nagpur, Dr. Anil Pardhi and also one special  query  form issued by Dr. Ashish Neware along with  other documents.  On the  basis of these documents  namely  medical records, it is submitted by Mr. Ghagarkar, learned advocate for the appellant  that the  deceased Mahipal Thakre, had suppressed  all these facts while submitting the  two proposal forms  on 20/04/2009 and 24/12/2009 and therefore,  the Life Insurance Corporation  had rightly  repudiated  the claim of the present  complainants who were nominees but the learned District Consumer Commission, Gondia had not considered these documents properly. In view of these submissions, we have gone through findings given by the learned District Consumer Commission, Gondia and record.

10.       So far as first aspect is concerned  the appellant has placed on record one Medical Certificate  issued by Gautam Super Specialty  Hospital  & Research  Institute, Nagpur and same shows that  deceased Mahipal Thakre had under gone surgery  for head injury  and was suffering  from ‘Diabetes Mellites with contusion with Oedema’ and  was  also indoor patient  from 06/06/2006 to 17/06/2006. The appellant has also filed another  medical certificate  which shows that  deceased Mahipal Thakre was further  indoor patient  from 17/06/2006 to 25/06/2006 in connection  with  PVO with Bronchitis.  We have also gone through another medical certificate which shows that deceased Mahipal Thakre was also an indoor patient in Government Dental College from 04/03/2004 to 26/03/2004.  The appellant has also placed on record and relied upon one Special Query Form issued by Dr. Ashish Neware which shows that the deceased- Mahipal Thakre was suffering from attack of Chronic Pancreatitis   and was known case of Chronic Pancreatitis   since three years. We find that this form was issued by Dr. Ashish Neware, on 03/01/2013 and period  was related   to three years back. From the aforesaid  documents, copies of which  are filed on record  it  becomes  crystal clear that  the deceased – Mahipal Thakre had met with an vehicular accident  and was indoor patient  from 26/02/2004 to 03/03/2004 and thereafter from 04/03/2004 to 26/03/2004. Further  it is also clear that  the deceased – Mahipal Thakre was also a patient  of Hyper tension  as well as Diabetes Mallites (D.M) and was admitted  in Gautam Super Specialty  Hospital  & Research  Institute, Nagpur from 06/06/2006 to 17/06/2006 and thereafter  from 17/06/2006 to 25/06/2006 as per medical  certificate issued by Dr. Pardhi. Not only  this but  the documents  also reveals  that the deceased- Mahipal Thakre was suffering  from Chronic Pancreatitis  since August-2010 as per the medical  certificate  and special query  form issued by Dr. Ashish  Neware on 03/01/2013.

11.       We have heard Mr. Harinkhede, learned advocate for the respondents and he has submitted before us that though the deceased – Mahipal Thakre was on leave on 06/06/2006 till 25/06/2006 as per the certificate from Dr. Anil Pardhi  but same  was  for a very  minor  ailment  namely  Bronchitis not requiring  any surgical  treatment.  Similarly  the learned advocate for the respondents  has also supported the findings  on the ground that  though Dr. Ashish Neware had issued a medical  certificate on 03/01/2013 but  he had examined  the deceased – Mahipal Thakre on 01/03/2011 after  delay of two years. Mr. Harinkhede, learned advocate for the respondents has submitted that this medical certificate issued by Dr. Ashish Neware and other  certificates  will have no evidentiary    value  but we are unable to accept this contention for the simple  reason  that the respondents have not denied  the authenticity   and genuineness  of this  medical certificate  which is issued  in the  usual course of business.

12.       If we turn to the judgment and order passed by the  learned District Consumer  Commission, Gondia, the learned District Consumer Commission, Gondia has also not give due weightage  to these medical certificates  on the ground that  the ailment mentioned by the concerned Doctors  were  of minor  nature. It is  extremely  relevant  to note that  the diseases  mentioned  by the doctor attached to Gautam Super Specialty  Hospital  & Research  Institute, Nagpur and Dr. Ashish Neware and other doctors were not at all minor or trivial in nature and showed that  the deceased- Mahipal Thakre was suffering  from  injury like head injury  and  diseases  like ‘Diabetes Mellites’ as well as ‘Hyper Tension’  for which  the deceased- Mahipal Thakre was admitted as an indoor patient  for  a long  period  from 26/02/2004 to 26/03/2004 and thereafter from 06/06/2006 to 25/06/2006. Moreover, the deceased – Mahipal Thakre was also known case of ‘Chronic Pancreatitis’   but despite suffering from this ailment and diseases for which  he was indoor patient  for long period,  the deceased – Mahipal Thakre had answered  question Nos. 11-a to 11-h and 11- j relating  to his medical  condition in the negative and question  No. 11-i  regarding  usual status of health  was answered as good thereby suppressing the facts relating to his  own illness.

13.       It is vehemently submitted by Mr. N.K. Ghagarkar, learned advocate for the appellant  that  illness  or diseases  suffered by deceased – Mahipal Thakre prior to  his taking the policies on 20/04/2009 and 24/12/2009 cannot at all be termed as minor but were on  material  aspect.  Mr. N.K. Ghagarkar, learned advocate for the appellant  has submitted that  the claims  made by the present  complainants  came to be repudiated  as there was  suppression of material  facts as per section 45 of the  Insurance Act. Mr. N.K. Ghagarkar, learned advocate for the appellant  has also pointed out that  the facts suppressed  by  the deceased- Mahipal Thakre go to root  of the contract of the  insurance  and has bearing  on the  risk involved  and amount to material  facts.  According to  Mr. N.K. Ghagarkar, learned advocate for the appellant  when  there is deliberate   suppression of material  fact pertaining  to  health  of  life assured,  contract of insurance  which is based on principle of utmost good faith gets vitiated.  On this aspect Mr. Ghagarkar, learned advocate for the appellant  has relied upon  judgment of the Hon’ble National  Consumer Commission in the case of  Life Insurance Corporation  of India and Anr. Vs. Surekha Shankar Jadhav and Ors. , reported in III (2012) CPJ 651 (NC) and  also relied upon the judgment  in the case of  L.I.C. of India Vs. Sulbha Prakash Motegaonkar and Ors., decided by the Hon’ble National Consumer  Commission on  16/09/2014 in Revision Petition No. 3809 of 2009.  Further he has also relied upon on judgment  in the case of Life Insurance Corporation  of India  Vs. Santosh Devi, reported in  IV(2014) CPJ 139(NC)  and one judgment of the Hon’ble National Consumer  Commission  in the case of LIC of India  Vs. Panchfula Shriram Jadhav.

14.       We have carefully gone through these judgments on which reliance  is placed. In the case of L.I.C. of India Vs. Sulbha Prakash Motegaonkar and Ors. cited supra  the Hon’ble National Consumer Commission  has relied upon  another  judgment  in the case of Satwant  Kaur Sandhu Vs. New India  Assurance Co. Ltd., reported in (2009) 8 SCC 316. In all these cases  on which reliance was placed  by Mr. N.K. Ghagarkar, learned advocate for the appellant  there was  misrepresentation  and concealment of fact  made by the insured relating to  illness  and it was observed  that  the concealment  was of the fact which was  exclusively in the knowledge of the insured and so the same vitiated  the Contract of the insurance.  Here in the present case  before us the deceased- Mahipal Thakre had  made statement  regarding  his good  health  by concealing  the fact of his  prior illness and also the fact that  he was also  indoor patient  for a long period for the illness.  In our view, the illness and ailments suffered by deceased – Mahipal Thakre supported by documents cannot be termed as minor ailments by any stretch of imagination though, such findings  were recorded  by the learned District Consumer Commission, Gondia.

15.       On the other  hand,  Mr. Harinkhede,  learned advocate for the respondents  has placed  reliance upon  one judgment  of Hon’ble Supreme Court in the case of Sulbha Prakash Motegaonkar and Ors Vs. Life Insurance  Corporation  of India  cited supra where  it was held  that  the alleged concealment  was not of such  a nature as would disentitle   the deceased  from getting  his life insured.  Mr. Harinkhede,  learned  advocate for the respondents  has also  relied upon two judgments  in the case of  Ram Dulari Devi Vs. Life Insurance Corporation of India , reported in AIR 2010 Jharkhand 45 and Kuni Lata Sahoo Vs. Senior Divisional  Manger, LIC  of India , reported in AIR 2010 Orissa 19  but  in both  these judgments the  insured was  suffering from minor  ailments and not  a serious disease having  any bearing on risk undertaken  by the LIC and therefore it was observed  by the Hon’ble  High Court  that  the repudiation  of the  policy  and  rejections of claim was  not  justified. But facts in the present case  are  very  different.  

16.       We have already pointed out from the documents placed on record that the diseases   and ailment suffered by deceased – Mahipal Thakre cannot be said to be minor in nature.  On the other hand, the same were very much material and so were bound to go to the root of the contract of insurance.  Admittedly, insured was under solemn obligation to make full disclosure of all  material facts which was not done by the deceased- Mahipal Thakre. In these circumstances the findings given by the learned District Consumer Commission, Gondia that  the ailments  were minor in nature  and had no bearing  on the contract cannot be sustained  and will have to be set aside.

17.       In the light of aforesaid discussion held by us above, we find considerable force in the contentions advanced by Mr. N.K. Ghagarkar, learned advocate for the appellant and so we feel that the order passed by the learned District Consumer Commission, Gondia dated 20/02/2017 will have be to be set aside.  As such we proceed to pass the following order.

ORDER

i.          Appeal is hereby allowed with cost

ii.          Impugned order dated 20/02/2017 passed by the learned District Consumer Commission, Gondia is hereby set aside. Complaint filed by the complainants is hereby   dismissed.

iii.         Copy of order  be furnished  to both the parties, free of cost.