STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF MEGHALAYA: SHILLONG
C.Appeal No. 4(M) of 2003
Life Insurance Corporation of India,
A body Corporate Constituted under the
LIC Act, represented by its Branch Manager,
LICI, C/O “Jeevan Jyoti, Dhankheti,
Shillong-793003:
…..Appellant/opposite party
-Vs-
Smti Sudharani Deb,
W/o (L) Nripesh Chandra Deb,
C/o Kamakhya Sweets
Opposite Police Reserve Gate,
Quinton Road, Shillong-793003,
Meghalaya:
…Respondent / Complainant
For the appellant: Mr. S.Jindal, Advocate
For the respondent: Mr. S.Chakrawarty,Advocate
Date of hearing : 06.07.2013
Date of judgment: Order dated 27.07.2013
JUDGMENT & ORDER (CAV)
Per Mr. Justice P K Musahary, President.
This appeal, preferred under Section 17(1)(a)(ii) of the Consumer Protection Act, 1986, is directed against the judgment and order dated 24.06.2003 passed by the learned District Consumer Disputes Redressal Forum, Shillong (District Forum in short) in Consumer Case No.15/2002, whereby the order of repudiation of two insurance policies has been set aside directing the appellants/opposite party to pay a sum of Rs.1,50,000/-(Rupees one lac fifty thousand) on account of LICI policy No.482090193 and Rs.25,000/- (Rupees Twenty Five Thousand) on account of policy No. 481474311 with interest at the rate of 9% per annum on the total sum of Rs.1,75,000/- for a period from 8.8.2001, being the date of repudiation till the entire amount is paid and also to pay compensation of Rs.5000/- for causing mental agony and suffering and Rs.3000/- as cost to the Respondent/Complainant.
2. The facts in brief, material for the purpose of disposal of this appeal, are as under:
(a)The husband of the complainant, Shri N.C.Deb made two proposals dated 24.04.1999 and 30.03.1996 for acquiring Life Insurance Policies from the Appellant Corporation. Subsequently, the Appellant Corporation issued two policies in favour of the deceased husband of the complainant being policy No.482090193 commencing from 28.07.1999 for an amount of Rs.1,50,000/- and policy No. 481474311 commencing from 28.03.1996 for an amount of Rs.25,000/-. The second policy got lapsed and it was revived on 28.08.1998 only.
(b)The insured Shri N.C.Deb (hereinafter referred to as insured) died on 20.11.1999. The complainant being the nominee of the policies preferred the claim with the appellant Corporation. It caused an investigation as the claims of the compliant were classified as “Early Claims”. Upon investigation, the claims of the complainant were repudiated on the ground that the insured did not disclose his ailments which he had been suffering from for many years in the proposal forms of the respective policies as well a under Section 45 of the Insurance Act, 1939.
(c) Being aggrieved by the said repudiation the complainant filed a complaint case before the learned District Forum alleging deficiency in service in repudiating the claims under the said policies and claimed the sum assured with interest, cost, etc.
(d)The said complaint was admitted by the learned District Forum and the matter culminated into the passing of the impugned judgment and order dated 24.06.2003.
3. We have gone through the complaint petition of the complainant as well as the written statements of the opposite party. From their pleadings we find the following admitted positions;
(1) The appellant Corporation issued two LICI policies in favours of the deceased husband of the complainant being policy No.482090193 assuring Rs.1,50,000/- commencing from 28.7.1999 and policy No. 481474311 assuring Rs.25,000/-
(2) The latter policy was lapsed and it was revived on 28.8.1998
(3) The complainant is the wife of the insured Nipendra Ch.Deb and she was appointed as his nominee.
(4) The insured died just after 4(four) months of opening of the insurance policy No.482090193 and after 15 months of the date of revival of the second policy No. 481474311.
(5) The appellant-insurance company repudiated the insurance benefit on the ground that the insured expired within two years of the policy coming into effect and the insured while submitting the proposal form dated 29.4.1999 relating to policy No.482090193 as well as the proposal form dated 30.3.1996 prior to revival of policy No. 481474311, suppressed the material facts concerning his health. The appellant claims that the repudiation of the insurance benefit has been done in accordance with the condition as laid down in the insurance policies and as per provisions under Section 45 of the Insurance Act.
4. We have heard Mr. S.Jindal, learned counsel for the appellant/opposite party and Mr. S.Chakrawarty, learned counsel appearing for the respondent/complainant. We have also perused the records of the District Consumer Forum as made available to us along with written submissions filed by the parties at the time of hearing.
5. Having taken into consideration the above admitted factual positions of the case we find that this Commission is to decide an issue as to whether the insured misrepresented or suppressed or withheld the correct information regarding his health at the time of effecting the insurance with the appellant- Corporation justifying repudiation of insurance benefit.
6. Mr. Jindal, learned counsel for the appellant submits that the ailments of the insured is admitted by the complainant in claim Form No.B01 but it was fraudulently suppressed and concealed and thereby the insured had breached the contract of insurance which is based on principle of uberrima fides i.e. utmost good faith. In order to establish the allegation/charge that the insured was suffering from serious ailments before insurance policies were effected, appellant had largely relied upon a “case summary” dated 28.02.2000 issued by Dr. G. Khongwir, medical officer of Nazareth Hospital, Shillong (Annexure-F to the memo of appeal). The said case summary reads as under:
“NAZARETH HOSPITAL
Laitumkhrah- Shillong -793 003
Meghalaya- India
Case Summary
Mr. Nripesh Chandra Deb 50 yrs/M was admitted here to Nazareth Hospital on 04/11/99 with complaints of fever + cough+ breathing difficulty. Patient was also a known case of HTN & DM for many years on Homeopathic medication. Patient was restless & disoriented at time of admission. History as told by the son. Prognosis was explained as general condition of patient was poor.
ECG recorded Myocardial Infraction
Cardiac Enzymes also revealed MI
Patient was treated accordingly and was discharged in a stable condition on the 11/11/99 with advice to continue medications at home and also complete bed rest.
Sd/ Illegible 18/04/2000
Dr.G.Khongwir
Medical Officer
Nazareth Hospital, Shillong”
7. According to Mr. Jindal, learned counsel for the appellant, the said “case summary” is a public document inasmuch as it is a medical certificate issued by a doctor of a reputed hospital. The appellant, at no point of time, either in its written statement or memo of appeal, stated or claimed that Nazareth Hospital is a Government Hospital and for that matter, the doctors/medical officers working in the said hospital, are gazetted officers and the medical certificate or the “case summary” issued by them assumes the character/status of a public document. A brief reference to Section 74 of the Indian Evidence Act, 1872 would make the position clear. Under the aforesaid provisions of Evidence Act, the following documents are regarded as public documents-
(1)Documents forming the acts, or records of the acts-
(i) Of the sovereign authority,
(ii) Of official bodies and tribunals, and
(iii) Of public officers, legislative, judicial and executive, of any part of India or of commonwealth, or of a foreign country;
(2) Public records kept in any State of public document.
8. In view of the above provisions in the Evidence Act, we are not prepared to accept the said medical “case summary” as a public document and to treat it as a piece of legal documentary evidence. Legally speaking, it is a private document within the meaning of Section 75 of the Indian Evidence Act which is required to be proved in a legal proceeding before accepting it as a piece of documentary evidence. Such a document, without being proved in accordance with law, cannot be acted upon.
9. We have verified from the record that the appellant/opposite party, while filing the written statement annexed only a photo copy of the said case summary. The original of the said document was never filed before the District Forum. The original of the said document is presumed to be in the possession of the appellant. On the basis of this document the appellant has alleged that the insured was a known case of “HTN & DM for many years on Homeopathic medication” and the insured suppressed this fact at the time of opening the insurance policies. As per the law of Evidence, the burden of proof lies on the party who brings the charge/allegation against the other party.
10. The appellant/opposite party examined no witness in the District Forum. It was incumbent upon the appellant/ opposite party to examine Dr. G.Khongwir of Nazareth Hospital to prove the content of the said case summary as correct and the said doctor found the insured as a known case of HTN & DM for many years, after due medical examination. We are conscious that the strict principle of proof is not applicable to the proceeding in the Consumer Forum but we are constraint to observe that the appellant had withheld the original of the said “case summary” and prevented the District Forum and this Commission from perusing the same. The very existence of the said document ( case summary) has become doubtful. The appellant has miserably failed to discharge the primary burden of proof. In view of the above default in proving the said “case summary” by examining the doctor concerned who issued the same we do not subscribe to the view that the insured was suffering from HTN & DM for many years before effecting the insurance policies in question.
11. The appellant has referred to and relied upon the case of LIC of India –vs- Asha Goel, reported in (2001) 2 SCC 160. It was a case where the cause of death of the insured was certified as “acute myocardial infraction & cardiae arrest” but the insurer failed to prove that there was any previous diagnosis of myocardial infraction of the insured. The Division Bench of Bombay High Court refused to look into the medical report since it came into existence after the policy was issued. The facts and circumstances of the aforesaid reported case are not similar to the ones in this case. We fail to understand how the Asha Goel’s case (supra) would come to the help of the present appellant who has failed to produce any reliable medical evidence on existence of HTN & DM or any other serious ailments/diseases prior to opening of the policies in question.
12. The learned counsel for the appellant has also relied upon the case of Mithoolal Nayak –vs- LICI, reported in AIR 1962 SC 814. It was a case of repudiation of policy benefit by the LICI against which the insured instituted regular civil suit which was decreed. The LICI preferred an appeal in the High Court of Madhya Pradesh which was allowed and the suit was dismissed with costs. The insured filed civil appeal in the Apex Court which was dismissed with costs. It was a case of deliberate concealment of fact that the proposer had been treated by doctor few months before policy was taken for serious ailment. In the said facts and circumstances of the case the Court held that the policy was vitiated by suppression of material facts by the policy holder and the person holding assignment of policy cannot hold benefit of contract. We are of the view that the present case is bearing completely different facts and circumstances which are not similar to the facts and circumstance of the aforesaid reported case where the Court found suppression and concealment of certain material facts like suffering from serious ailments and under going treatment few months before the policy was taken. But in the present case it has not been proved or brought on record by the appellant/opposite party that the insured was ever admitted in the hospital or was under treatment by a doctor for serious ailments before the contract of insurance was signed or effected. We are, therefore, not satisfied that appellant/opposite party has been able to prove its case that the insured was suffering from HTN & DM or any serious ailment before the insurance policies in question were effect. The said reported case also does not come to the help of the appellant.
13. In the course of hearing, the learned counsel for the appellant drew our attention to clause 4 of the medical examiner’s confidential report (Annexure-B1 to the Memo of Appeal), which is a part of the proposal for insurance. In The said clause, the insured was asked as to whether he –
i) has been hospitalized?
ii) was involved in an accident?
iii) has undergone any Radiological, cardiological, pathological or
any other tests?
iv) is currently under any treatment?
The insured answered all the questions in the negative.
It has been contended that the insured deliberately and fraudulently made misstatements and suppressed the material facts about the real state of his health and as such the repudiation of polices was justified. The Hon’ble National Commission had an occasion to deal with a similar case in Sahara India Life Insurance Co. Ltd. & another-vs- Smti Hansaben Deepak Kumar Pandya, reported in 2013 (1) CCC 315 (NS), wherein it is held, amongst other, that such statements in the proposal form is not a conclusive proof of suppression of an ailment. The Hon’ble National Commission clearly ruled that this kind of evidence is exiguous and it carries no value in the eye of law.
14. The learned counsel for the respondent/claimant has also relied on the aforesaid two reported cases. In the case of Asha Goel(supra) the Apex Court held that the burden of proof is on the insured to establish the circumstances that the policy holder fraudulently suppressed the material facts at the time of opening the insurance policy and unless the insurer is able to prove it, there is no question of policy being avoided on ground of misstatement of facts. It is also held that a duty to disclose material fact continues right up to conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance, and if there is any mis-statement or suppression of material facts the policy can be called into question. There is also an observation to the effect that in the matter of repudiation of contract of life insurance, on the ground of misstatement, the LICI should not deal with the matter in a mechanical and routine manner. The approach of the LICI should be one of extreme caution and care. The manner in which the appellant has dealt with the present case in repudiating the insurance claim, we have no manner of doubt that it has adopted a casual and technical approach to cause delay and defeat the interest of the respondent claimant in payment of the insurance money as per terms and condition laid down in policies.
15. In view of the above discussion based on entire facts and circumstances of the case and also the case laws relied upon by the parties, we hold that the appellant insurer has failed to establish a case of repudiation of the insurance policies in question. There is no infirmity or illegality, either factual or legal, in the impugned judgment and order as passed by the learned District Forum and hence we refrain from interfering with the same. This appeal is bereft of any merit. Accordingly, we dismiss the instant appeal with cost of Rs.5000/- to be paid to the respondent for meeting the expenses in contesting the appeal for last about a decade. We direct the appellant insurer to comply with the directions/ orders given by the learned District Forum within a period of 40 (forty) days from today failing which the appellant shall be liable to pay further interest at the rate of 12% p.a. on the awarded amount till the payments are made.
