APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:  14^th   JULY  2016

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          The challenge in this revision petition is to the impugned order dated 27.07.2012, passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as “the State Commission”) in Appeal No. 1260/2009, Shriram Life Insurance Co. Ltd. vs. Smt. Subhadraben Bhagatsingh Rathod, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, dated 16.10.2009, in Consumer Complaint No. 940/2008, filed by the present respondent, allowing the said complaint, was upheld.

2.      The facts of the case are that the complainant Subhadraben Bhagatsingh Rathod filed the consumer complaint in question, stating that her late husband, Bhagatsingh Ramanbhai Rathod obtained four life insurance policies called Shri Ram Plus Life Insurance Policies for a sum assured of Rs. 2.5 lakhs each, valid for the period from 01.08.2007 to 01.08.2012.  The life insured died on 21.11.2007 at 12.15 am, following a massive heart attack.  The complainant intimated the Insurance Company about the death and also submitted claim with them alongwith the supporting documents about the second week of June, 2008.  However, the OP Insurance Company rejected the said claim vide their repudiation letter dated 26.09.2008, stating as follows:

        “On detailed investigation by our Investigator, it has come to our notice that the life assured was having pre-existing health problem at the time of applying for insurance, which was not revealed to us.  Life insurance policies are contracts governed by the principle of “UBERRIMA FIDE” and the proposer applying for insurance is expected to correctly furnish all material information  regarding the health, habits, family history, personal medical history, income etc. of the life proposed for insurance by giving correct answers to the questions in the proposal form.”

3.      The complainant filed the consumer complaint in question, alleging deficiency in service on the part of the Insurance Company and seeking directions to them to pay a sum of Rs. 10 lakhs as assured sum under the four policies alongwith interest @ 9% p.a. from the date of the complaint till payment and also Rs. 25,000/- as compensation against mental harassment with litigation cost of Rs. 15,000/-.

4.      The complaint was resisted by the petitioner/OP Insurance Company by filing a written statement before the District Forum, confirming that the insured had taken four policies with sum assured of Rs. 2.5 lakhs each, but stated that it had been revealed during investigation of the case that the deceased policy holder was ‘making’ alcohol at his home and he was in the habit of consuming alcohol in large quantity and he had severe health problems relating to his kidneys.  The said facts had not been disclosed to the Insurance Company at the time of taking the policies in question.  Moreover, Dr. Girjesh M. Agrawal of Durga Clinic had suggested to the complainant/nominee under the policies to have the post-mortem conducted on the dead body of the insured so as to ascertain the cause of his death, but the same was not done.  It has further been stated in the reply that the deceased policy holder had first taken treatment on 01.06.2007 from Dr. Girjesh M. Agrawal and at that time, he was in drunken state.  From the medical case sheet given by Dr. Agrawal, it was clear that he was suffering from renal ailment and was on regular medication for the same.  The deceased came to Dr. Agrawal again on 25.07.2007, when he was asked to go to another hospital.  Thereafter, the insured was again brought to Dr. Agrawal on 20.11.2007, but he was in the last condition of kidney failure and he died subsequently.  The Insurance Company stated that they had rightly repudiated the claim because of the failure of the insured to disclose correct information about the condition of his health to them.

5.      The District Forum, vide order dated 16.10.2009, allowed the consumer complaint and directed the Insurance Company to pay a sum of Rs. 10 lakhs alongwith 6% interest from the date of the complaint till realisation.  Being aggrieved against the said order, the Insurance Company challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed vide order dated 27.07.2012, the Insurance Company is before this Commission by way of the present revision petition.

6.      On record, the petitioner Insurance company has placed a copy of the investigation report dated 29.08.2008, made by M. A. Sajid, Investigator and Tracer.  It has been stated therein that the deceased was under treatment for the past couple of years and he was addicted to consuming alcohol in excess quantity and that he got kidney failure, due to which he expired.  It is also stated in the said report that despite advice of Dr. Agrawal, the post-mortem was not got conducted on the body of the deceased.  On record, is a copy of another investigation report dated 03.09.2008 made by Kamal Investigation Agency, in which it was stated that the deceased was ill prior to the application for obtaining the policy.  It has been stated in the said report that Dr. Girjesh M. Agrawal, who gave treatment to the insured on 01.06.2007, did not have valid degree for medical practice.  On his letterhead with the name Durga Clinic, the words DHMS had been written, meaning thereby that he was a homeopathic doctor.

7.      During hearing before me, the learned counsel for the petitioner Insurance Company submitted that the deceased policy holder had taken consultation and treatment on 01.06.2007, i.e. before taking the policies in question, from Dr. Girjesh M. Agrawal of Durga Clinic and Hospital for renal failure.  The insured was duty bound to disclose the said facts before obtaining the said policies to the Insurance Company, so as to enable them to take informed decision regarding the issuance of the policies in question.  The learned counsel stated that as recorded by Dr. Agrawal on 01.06.2007, the complainant was suffering from CRF, meaning Chronic Renal Failure, abdominal pain and dysneya and he was advised investigation.  It has also been revealed from the two reports of the investigating agencies that the insured was in the habit of consuming alcohol in excess and his habit coupled with the renal ailment, led to his death just after 3 to 4 months of taking the policies.  The two investigators had also filed affidavits in support of their reports.  The learned counsel stated that they had filed the best evidence available with them and hence, the consumer fora below should have relied on the same and ordered the dismissal of the complaint.  The learned counsel further stated that they had already paid a sum of Rs. 2,04,656.08/- to the complainant as full and final satisfaction and discharge of fund value in respect of the Unit linked policies in question.  They were, however, not required to pay the insured sum of Rs. 10 lakhs in view of the averments made above.  The learned counsel has drawn attention to the orders passed by the Hon’ble Supreme Court in LIC of India & Ors. vs. Asha Goel & Anr., (2001) 2 SCC 160, Mithoolal Nayak vs. LIC of India, AIR 1962 SC 814, S. P. Chengal Varaya Naidu vs. Jagannath & Ors., (1994) 1 SCC 1 & P. C. Chacko & Anr. Vs. Chairman, Life Insurance Corporation of India & Ors., (2008) 1 SCC 321 in support of his arguments.

8.      Per contra, the learned counsel for the respondent stated that there was nothing on record to prove that the deceased was engaged in the activity of making illicit liquor or was consuming excess alcohol.  These facts had been stated in the report of the investigator, but there was no material on record to support such a contention.  Moreover, the death took place due to heart attack and not because of kidney ailment.  It is clear from the material on record that the deceased suffered chest pain on 20.11.2007 for which he consulted the said Dr. Agrawal.  The learned counsel further stated that Dr. Girjesh M. Agrawal did not have any degree to practice medicine as brought out in the report of Investigator Kamal Investigation Agency.  He has been stated to be a DHMS, which means a homeopathic doctor only.  Further, no affidavit of Dr. Agrawal had been produced on record by the Insurance Company.  The State Commission had therefore rightly observed in their order that for the failure of the Insurance Company to produce affidavit of the treating doctor and for their failure to produce strong evidence regarding habit of drinking liquor by the insured, it was not justified to repudiate the claim in question.  The learned counsel further stated that there was no medical report to substantiate the version of the Insurance Company that the deceased suffered from a kidney problem.  The learned counsel referred to the affidavit filed by M. A. Sajid  of Kamal Investigation Agency, in which it had been stated that the inquiries from local people revealed about the pre-health problem of the policy holder, but they were not willing to give it in writing.  There was no medical report also, substantiating the fact that the deceased had kidney problem.  The repudiation of the claim was, therefore, not justified.  Referring to the judgements produced by the learned counsel for the Insurance Company, the learned counsel for the respondent replied that the judgments were not applicable to the facts of the present case, because the Insurance Company had not been able to establish, whether the deceased was suffering from any pre-health problem, which he did not disclose while obtaining the policies in question.

9.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

10.    The main issue for consideration in the present case is whether there had been any concealment of material information about the health condition of the deceased policy holder at the time of making application to the Insurance Company for obtaining the policies in question.  From the averments made by the parties and the material on record, it is clear that the case of the Insurance Company is built on the medical case sheet made by Dr. Girjesh M. Agrawal, when the deceased first went to him for consultation on 01.06.2007.  The words CRF meaning Chronic Renal Failure, abdominal pain and dysneya were written on 01.06.2007 by Dr. Agrawal and the insured was advised further investigation.  A perusal of the copy of the said case sheet placed on record by the Insurance Company reveals that the said document signed by Dr. Agrawal refers to the notes recorded by him on four different dates i.e. 01.06.2007, 25.07.2007, 20.11.2007 and 23.11.2007 meaning thereby, that this document was made after 23.11.2007 only.  It is not clear from the papers produced on record whether any case sheet was made on 01.06.2007 itself, when the policy holder is stated to have gone to him for the first time.  Further, there is a letter dated 30.08.2008, written by the said Dr. Agrawal, addressed to A. Y. Pathan Investigator, Kamal Investigation Agency in which he stated that the patient came to him for treatment for the first time on 01.06.2007 and he found him in drunken condition and also found him weak and unconscious.  Thereafter, he came to him on 25.07.2007 when he sent him to another hospital.  Dr. Agrawal has not stated in the said letter whether he diagnosed the patient having any kidney ailment on 01.06.2007.  It has come in the report of the said Investigation Agency that Dr. Agrawal does not have a valid degree for medical practice.  It has also come on record that in the letterhead of Dr. Agrawal, the words DHMS had been written, meaning thereby that he was a homeopathic doctor.  The affidavit of the said Dr. Agrawal has not been filed on record and no valid explanation has been given on the part of the Insurance Company for not doing the same.  In the light of all these facts, it is not made out anywhere whether the contention of the Insurance Company that the deceased was suffering from kidney problem was true or not.  It is also clear that no medical tests etc. were got conducted before issuing the insurance policies in question.  It is evident, therefore, that it shall not be in the interest of justice to believe the version given by the Insurance Company, based on the report of two investigators only.  It was essential for the Insurance Company to bring on record proper medical evidence in support of their allegations that the insured was suffering from some health problems, which he did not disclose in the proposal form submitted for obtaining the insurance policies in question.  I, therefore, have no reasons to differ with the contention raised by the learned counsel for the complainant that the judgments referred to by the petitioners are not applicable in the present case.  A plain reading of all the judgments referred by the petitioner, indicates that the concealment of material information on the part of the insured before taking the insurance policy has been considered as fatal to the claims filed by the insured.  In the present case, since the facts about the health condition of the insured as alleged by the Insurance Company do not stand proved from record, there is no question of any adverse inference against the insured for non-disclosure of the same in the proposal forms.  It is evident, therefore, that the judgements cited on behalf of the petitioner do not find application, given the facts and circumstances of the present case.

11.    Based on the discussion above, it is held that there is no force in the present revision petition since there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below.  The revision petition is, therefore, ordered to be dismissed and the orders passed by the consumer fora below upheld, with no order as to costs.