Tripura

StateCommission

A/17/2015

Life Insurance Corporation Of India - Complainant(s)

Versus

Sri Jiban Sutradhar & 4 others - Opp.Party(s)

P.K Debnath

18 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A/17/2015

 

LIFE INSURANCE CORPORATION OF INDIA,

Represented by Chief Manager,LICI-Br.1,

Paradise Chowmohani, Agartala, West Tripura,

Constituted Attorney on behalf of LICI.

                   ….    ….    ….    ….    Appellant.

                   Vs

1. SRI JIBAN SUTRADHAR,

S/O Late Chitta Ranjan Sutradhar,

Resident of – Amarpur Block Chowmohani,

P.O-Amarpur, Dist.-Gomati Tripura.

     ….    ….    ….    ….    Respondent-complainant.

 

2. SRI TAPAN SUTRADHAR.

 

3. SRI DIPAK SUTRADHAR,

 

Both are son of Late Chitta Ranjan Sutradhar,

Resident of –Amarpur Block Chowmohani,

P.O-Amarpur, Dist.-Gomati Tripura.

 

4. SMT. SWAPNA SUTRADHAR,

Wife of Sri Tapan Sutradhar,

Resident of P.O-Barjala, P.S-West Agartala,

Dist.-West Tripura.

 

5. SMT. JAYASMITA SUTRADHAR,

Wife of Sri Bikash Sutradhar,

Resident of –Jamjuri,Rajdhannagar,P.O-Jamjuri,

P.S-Kakraban, Sub-Division-Udaipur,

Dist.-Gomati Tripura.

                    ….    ….    ….    ….    Proforma Opposite Parties.

 

 

 

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

 

               MR. NARAYAN CH. SHARMA,

            MEMBER

            STATE COMMISSION.

           

For the Appellant      :    Mr.P.K.Debnath,Adv.

          For the respondent   :    Smt.K.Majunder(Paul),Adv & Mr.B.Saha,Adv.

                                              

Date of Hearing         :   26.08.2015.

Date of delivery of Judgment  :

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 14.05.2015 by the appellant-Life Insurance Corporation of India under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and award dated 20.03.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), Gomati District, Udaipur in case No.C.C-09 of 2014 whereby the Life Insurance Corporation of India, the appellant herein, is directed to pay the assured sum of Rs.2,75,000/- (Rs.2,00,000/- & Rs.75,000/-) of two policies to the nominee-complainant who is to disburse the same among the legal heirs with a direction to pay the interest over the said amount from the date of judgment @ 9% p.a. till the payment is made. It also appears that by virtue of the same judgment the complainant is entitled to get Rs.5,000/- as compensation for the deficiency in service on the part of the respondent.      

2. The case of the appellant as narrated in the memo of appeal, in brief, is that Smt. Tulshi Sutradhar, a Govt. Employee submitted the Proposal No.5770 on 14.08.2010 for Endowment Assurance Policy under Table and Term 014/23 with DAB Benefit for a sum assured of Rs.2,00,000/- only and the Proposal No.1189 on 18.03.2011 for Endowment Assurance Policy under Table and Term 014/16 with DAB Benefit for a sum assured of Rs.75,000/- before LICI, Udaipur Branch. It is also alleged that the content of the proposal forms were fully explained to the assured by Sri Dhiman Debnath, Agent, LICI and the assured knowing fully well signed the same and thereafter, the proposals were accepted on good faith by the appellant-LICI and accordingly, both the Policies No.492698579 and 493333763 were issued in favour of the Life Assured Tulshi Sutradhar.                                                    
3. It is also alleged that the Life Assured Smt. Tulshi Sutradhar died on 19.04.2012 i.e. within one year eight months five days and ten months twenty-eight days from the date of commencing of both the policies respectively and thereafter, on getting the information of death from the claimant, the LICI issued the claim forms and thereafter the said forms and other documents were submitted by the complainant to the Branch Office of the LICI.
4. It is also alleged that thereafter, the O.P. repudiated the claim of the claimant under both the policies vide letter dated 29.01.2014 and thereby being aggrieved, the complainant lodged the complaint before the Ld. District Forum under Section 12 of the C.P.Act. It is also alleged that the Ld. District Forum considering all wrongly and illegally passed the impugned judgment against the O.P. who thereby being aggrieved and dissatisfied, has preferred the instant appeal on the grounds that the Ld. Forum has committed gross miscarriage of justice by-passing the relevant issues of non-disclosure about illness of Melena with CLD, that the Ld. Forum has committed wrong in deciding that there is nothing to show that the deceased wilfully suppressed the material fact and gave wrong answers concerning her health-status, that the Ld. Forum ought to have appreciated that the LICI had repudiated the insurance claim on the ground that in suppression of the material fact, answers given by the DLA in reply to question Nos.11(i),(ii),(iii),(iv),(v),(vi),(vii),(viii) & (x) were all ‘No’ and as regards clause (ix) of question No.11 the answer was ‘Good’ as well as the declarations as true in the said proposals signed by the life assured with the declaration that she has not withheld any information, that the Ld. Forum ought to have appreciated that there is enough documentary evidence to show that the DLA has not disclosed the true status of her health at the time of making proposals for obtaining both the insurance policies, that the Ld. Forum misread the evidence and passed the impugned judgment ignoring the materials on record, that the Ld. Forum ought to have appreciated that the LICI meticulously considered the claims of the claimant and finding the suppression of material fact concerning the health status of the life assured made in the proposal forms at the time of submission of the same rightly repudiated the claim under both the policies, but the Ld. Forum disregarding all settled principles of law and the materials on record passed the impugned judgment erroneously which cannot be sustained in the eye of law and accordingly, the LICI being the appellant has preferred the instant appeal praying for setting aside the impugned judgment by way of allowing the appeal.               

Points for consideration.

5.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in allowing the claim application by the impugned judgment and (2) whether the judgment under challenge in this appeal should be set aside as prayed for.      

                         Decision with Reasons.

6.       Both the points are taken up together for the sake of convenience and brevity.

7. The learned counsel for the appellant-LICI submitted that admittedly, the Deceased Life Assured (DLA) Tulshi Sutradhar was a Group-D employee working in the department of Tribal Rehabilitation Division, South Tripura, Udaipur and died on 19.04.2012 on account of suffering from Liver Cirrhosis & Pulmonary Odima. He also submitted that the DLA during her life time submitted a proposal form on 14.08.2010 for securing a life insurance policy for an assured sum of Rs.2,00,000/- against which the policy No.492698579 dated 14.08.2010 was issued in favour of the DLA. He also submitted that thereafter, the said DLA again submitted another proposal form on 18.03.2011 for securing another life insurance policy for an assured amount of Rs.75,000/- against which another insurance policy bearing No.493333763 dated 21.05.2011 was issued in favour of her by the LICI. He also submitted that the DLA filed the proposal form dated 14.08.2010 mentioning ‘No’ in respect of clauses (i) to (viii) and (x) and mentioning ‘good’ in respect of clause (ix) of item/question No.11 therein. He also submitted that the said DLA again submitted another proposal form dated 18.03.2011 mentioning therein ‘No’ in respect of clauses (i) to (viii) and (x) and mentioning ‘good’ in respect of clause (ix) of item No.11 therein. He also submitted that the item No.11 of the proposal forms deals with health condition of the DLA, but the DLA Tulshi Sutradhar suppressed her ailments as per queries made in the proposal forms and thereby, she suppressed the material fact in submitting the proposal forms concerning her health condition.    
8. The learned counsel for the appellant also submitted that the DLA died within two years from the date of issuance of the two insurance policies in her favour by the LICI and as such, the LICI is legally competent to call in question regarding the said two insurance policies on the ground as to whether the statements made in the proposals for insurances were inaccurate and false. He also submitted that the appellant-LICI practically did the same thing by way of causing an enquiry regarding the health status of the DLA on or before the time of submission of the proposal forms. He also submitted that the DLA during her life time while in Govt. service availed of leaves on medical ground for many times, but the DLA suppressed that fact in the proposal forms. He also submitted that the appellant-Insurance Company submitted a number of documents before the LICI by the claimant Jiban Sutradhar, the nominee of the DLA concerning the illness and showing the taking of medical leaves by the DLA during her life time and from those documents, it has been established that the DLA submitted two proposal forms in two different times by suppressing the material fact concerning her health-status. He also submitted that the Ld. District Forum erroneously considered those documents as immaterial and basing on such erroneous conception passed the impugned judgment awarding compensation against the appellant-LICI which cannot be sustained in the eye of law and should be set aside being contrary to the established law of the land and therefore, the appeal should be allowed.   
9. The learned counsel for the appellant submitted that some decisions of the Hon’ble National Commission are lying with the record of the Ld. District Forum which were submitted by the learned counsel appearing for the LICI in the District Forum. He also submitted referring to the decisions of the Hon’ble National Commission passed in Revision Petition No.1585/11 reported in Legal Digest of April,2012, Revision Petition No.1548 of 2000 reported in III(2003) CPJ 15 (NC), Revision Petition No. 65-66/2011 reported in Legal Digest of October,2012 and Revision Petition No.2613/13 reported in Legal Digest of January,2014 that in view of the principles of law enunciated in the above cited decisions, it can be held without any hesitation that the DLA is guilty of suppression of material fact in the two proposal forms submitted for insurance.
10. The learned counsel for the appellant pointing out to the impugned judgment submitted that the Ld. District Forum overlooked the statements contained in both the proposal forms to the effect that the DLA signed the proposal forms knowing fully well the content thereof and also the statements that the agent of the LICI who filled up both the proposal forms explained the questions to the proposer and recorded the answers given by the proposer. He also submitted that the Ld. District Forum erroneously formed an opinion that the content of the proposal forms were not explained properly to the DLA Tulshi Sutradhar. He also submitted that the finding of the Ld. District Forum is erroneous and as such, the impugned judgment containing such erroneous finding cannot be sustained in the eye of law and is liable to be set aside by allowing the appeal.  
11. The learned counsel for the appellant referring to the decisions of this State Commission passed in Appeal nos. F.A-64/2013 and F.A-9/15 submitted that in the similar fact and circumstance, this State Commission passed both the judgments holding that the withholding of actual health condition of the proposer in item No.11 of the proposal forms tantamounts to the suppression of material fact. He also submitted that in the case in hand, it has been clearly established that the proposer (DLA) while submitted both the proposal forms for insurance in two different times withheld her actual health condition and therefore, following the decisions of this Hon’ble Commission given in the above mentioned two appeals, the finding of the Ld. District Forum given in the impugned judgment cannot be accepted and should be rejected and accordingly, the impugned judgment is liable to be set aside in this appeal.     
12. The learned counsel for the respondent-complainant submitted that the DLA Tulshi Sutradhar was a Group-D employee and cannot be said to be an well-educated person and as such, the content of the proposal forms required to be explained to the proposer while filling up the two proposal forms by the agent of LICI. He also submitted that the said agent of the LICI has not been examined by the LICI as a witness for establishing that the content of both the proposal forms at the time of filling up of the same were properly read over and explained to the proposer Tulshi Sutradhar and thereafter, the said proposer put her signature on both the proposal forms. He also submitted that the LICI produced some photo-copies of documents without any authentication and as such, nothing can be presumed conclusively from the said photo-copies of documents having no authenticity and accuracy. He also submitted that the Ld. District Forum rightly disregarded and placed no reliance upon those photo-copies of documents. He also submitted that the Ld. District Forum meticulously considered the cases of the parties and found no cogent ground to hold that the DLA is guilty of suppression of material fact concerning her health status as per queries in submitting both the proposal forms. He also submitted that having no authenticity and accuracy in respect of those photo-copies of documents submitted by the LICI in the District Forum cannot be a basis for reversing the finding of the Ld. District Forum. He also submitted that the impugned judgment being based on sound reasoning and principles of law should be upheld and as such, the appeal should be dismissed.   
13. The learned counsel for the respondent also submitted that both the proposal forms have made it clear that the proposer Tulshi Sutradhar was medically examined by the Doctor of the LICI before acceptance of the said proposal forms and being satisfied regarding the health status of the proposer, accepted both the proposal forms and accordingly, issued two separate insurance policies in favour of the DLA. He also submitted that now after the death of DLA, the LICI cannot dispute regarding the health condition of the DLA referring to the answers given by DLA against question No.11 of both the proposal forms. He also submitted that the appellant-LICI is now legally estopped after the death of DLA from raising the question regarding her health condition prevailing at the time of submission of the proposal forms. He also submitted that the Ld. District Forum rightly did not accept the plea of the LICI and passed the impugned judgment awarding compensation in favour of the claimant-complainant. He also submitted that in view of the above, the impugned judgment should be affirmed. In this regard, Ld. counsel for the respondents has referred to Section 45 of Insurance Act, 1938 and also has placed reliance upon the decisions reported in AIR 2012 Madras 203, AIR 1962 Gauhati 65, AIR 210 Calcutta 151, AIR 2001 Supreme Court 549, AIR 1980 Gauhati 55, AIR 1994 Supreme Court 591 and AIR 2010 Supreme Court, 1162.
14. The learned counsel for the appellant referring to the last portion of the proposal forms submitted that only in medical cases of insurance policy such portion of the proposal forms requires to be signed by the medical officer of the insurance company. He also submitted that admittedly, both the insurance policies are non-medical in nature and in case of non-medical policies, the medical examination of the proposer for insurance is not mandatory, rather optional. He then submitted referring to the decision of the Hon’ble Kerala High Court reported in AIR 1986 Kerala 201 that the mere fact that the medical officer of the Insurance Corporation had certified the Life Assured as good would not be of much consequence and the false answer to the questions in the proposal forms given by the Assured relating to the state of his health vitiates the contract of insurance and the Corporation is entitled to repudiate the policy and decline payment thereunder. He also submitted referring to the decision of the Hon’ble National Commission pronounced on 21.05.2013 in Revision Petition No.1548 of 2000 between Panna Devi (Petitioner) Vs. LICI and others (respondents) that if a person withholds any information, doctor would not know it, unless it is visible. He also submitted referring to the said decision that doctor is recording what the insured tells him, it is not the result of any test/examination. He also submitted that the Life Assured Tulshi Sutradhar put her signature after admitting that all the answers to question No.10 onward of the proposal forms had been correctly recorded. He also submitted that in that view of the matter, the submission made by the learned counsel for the respondent to the effect that the LICI accepted both the proposal forms for insurance in two different times after being satisfied regarding the health condition of the proposer is not tenable in the eye of law.
15. Admittedly, the DLA Tulshi Sutradhar submitted her first proposal form on 14.08.2010 for an assured sum of Rs.2,00,000/- and on the basis of that proposal form, the LICI issued the Policy No.492698579 dated 14.08.2010 in favour of Tulshi Sutradhar. It is also an admitted fact that the said DLA again submitted another proposal form on 18.03.2011 for an assured sum of Rs.75,000/- and the LICI issued another Policy No.493333763 in favour of Tulshi Sutradhar on 21.05.2011. It is also admitted fact that the present complainant Jiban Sutradhar is the nominee of the DLA in respect of both the policies. It is also admitted fact that the DLA Tulshi Sutradhar died on 19.04.2012 and the immediate cause of death is Liver Cirrhosis & Pulmonary Odima. It is also admitted fact that the DLA Tulshi Sutradhar was a Group-D employee working in the office of the Tribal Rehabilitation Division, South Tripura, Udaipur.
16. It is the case of the complainant-respondents that after the death of the DLA Tulshi Sutradhar, the complainant being the nominee of the DLA submitted claim application before the appellant-LICI claiming the assured sum of Rs.2,00,000/- + Rs.75,000/- as per two policies, but the appellant-LICI whimsically and without any justification repudiated the claim of the complainant.
17. On the other hand, it is the case of the appellant-O.P. No.1-LICI that the DLA submitted both the proposal forms for insurance in suppression of the material fact concerning her health condition in both the proposal forms. It is also the case of the appellant that the DLA was suffering from various ailments for which she had to take leaves and remained absent from her place of work for days together, but the DLA suppressed the said material fact concerning her health condition and submitted both the proposals forms in the negative in respects of her ailments and availing of leaves for many days on medical ground.
18. In view of the above, we have to see as to what amounts to suppression of “material fact” and whether the allegation of suppression of ailments and availing of medical leaves and remaining absent from the place of work for days together as alleged by the LICI have been substantiated and whether the suppression of the alleged material fact justifies the repudiation of the claim of the complainant by the appellant-LICI.
19. From the letter of repudiation of the claim dated 29.01.2014, it transpires that as per LICI, the DLA answered ‘no’ in respect of question No.11 (i), (ii), (iii), (iv), (v) and answered ‘good’ in respect of (ix). According to the LICI, the DLA did not disclose truth at the time of submission of proposal forms and gave false answers to the above questions and the said non-disclosure concerning her suffering from various illness and availing of medical leaves on several occasions tantamount to deliberate withholding of material information.
20. It has been held by the Hon’ble Apex Court reported in (2009) 8 SCC 316 between Satwant Kaur Sandhu Vs New India Assurance Co.Ltd. that the “terms ‘material fact’ is not defined in the Insurance Act, 1938 and, therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact that goes to the root of the contract of insurance and has a bearing on the risk involved would be material”. The Insurance Regulatory and Development Authority Regulations, 2002 defines the word ‘material’ to mean and includes all “important”, “essential” and “relevant information” in the context of guiding the insurer to decide whether to undertake the risk or not.
21. It has also been held by the Hon’ble National Commission in the case reported in Revision Petition No.1987 of 2006 that non-disclosure of the fact by the insured that he had suffered from Typhoid even eleven months prior to the taking of the policy or he had taken seventeen days leaves for getting treatment was a material fact. It has also been held by the Hon’ble National Commission in the first Appeal No. 1385 of 2009 that the statement made in the proposal forms in respect of leaves was false, which was material fact, hence, LICI was justified in repudiating the claim. It has also been held by the Hon’ble National Commission in Revision Petition No.3138 of 2006 that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. The Hon’ble Apex Court in the decision reported in IV (2009) 8 SCC 316 has been pleased to hold that insurance policy is a contract falling in the category of utmost good faith on the part of the assured and if the assured has not made full disclosure correctly or, in other words, if the declaration made is found to be false to the knowledge of the declarant, then, the insurance company is entitled to repudiate the claim. It has also been held that any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be “material” . It has also been held by the Hon’ble National Commission in a Revision Petition No.2386 of 2007 between LICI and others Vs. Vimala Verma that not giving information of a prior hospitalization undoubtedly was a material suppression of facts and it is settled law that a contract of insurance between the insured and the insurance company is based on the principle ubberima fides i.e. a contract entered into ‘utmost good faith’ and suppression of any material information by the insured would amount to breach of contract which would justify repudiation of the claim by the insurance company. From the above cited decisions, we find that suppression of any material fact in the proposal form concerning the health condition of the proposer for assurance entitles the insurance company to repudiate the claim of the claimant.
22. The question No.11 of the proposal forms runs as follows :-

         11.(i). During the last five years did you consult a

                   Medical practitioner for any ailment requiring

                   treatment for more than a week ?                           No

         (ii).     Have you ever been admitted to any hospital or

                   nursing home for general checkup, observation,

                   treatment or operation ?                                          No

         (iii).    Have you remained absent from place of work

                   On ground of health during the last five years ?           No

         (iv).    Are you suffering from or have you ever suffered

                   form ailments pertaining to Liver, Stomach. Heart,

                   Lungs, Kidney, Brain or Nervous System ?                   No

         (v).     Are you suffering from or have you ever suffered

                   from diabetes, Tuberculosis, High Blood Pressure,

                   Low blood Pressure, Cancer, Epliepsy, Hernia,

                   Hydrocele, Leprosy or any other disease ?                    No

         (vi).    Do you have any bodily defect or deformity ?                No

         (vii).   Do you have any accident or injury ?                            No

         (viii).  Do you use or have you ever used Alcoholic

                  Drink, Narcotics, Any other drugs, Tobacco in

                  any form ?                                                                 No

         (ix).   What has been your usual state of health ?                   Good

         (x).    Have you ever required or at present

                  availing / undergoing medical advice,

                  treatment or tests in connection with

                  Hepatities B or an AIDS related condition ?                    No

23.  From the employer certificate of DLA Tulshi Sutradhar, issued on 26.12.2013, it transpires that the DLA availed of commuted leave on medical ground from 30.03.2009 to 28.04.2009 and 29.04.2009 to 28.05.2009 totalling sixty days. So, it is found that the DLA was absent from her duty in the office continuously for the above sixty days for her illness. It also appears from the said certificate that the DLA availed of commuted leave on the ground of her illness from 16.11.2009 to 15.12.2009 and Earned Leave on the ground of illness from 16.12.2009 to 14.01.2010 totalling sixty days and for the said period she was again absent from her place of work. The first proposal form for insurance was submitted by the DLA on 14.08.2010. It further appears that the DLA was on medical leave for 28 days on and from 15.01.2010 to 11.02. 2010. It means that the DLA was absent from her place of work continuously for the period of 88 days (60 days + 28 days) on medical ground. It further appears from the said employer certificate that the DLA also availed of Earned Leave on medical ground for her illness on and from 04.05.2010 to 07.05.2010. From the discharge certificate of G.B.P.Hospital & Govt. Medical College, Agartala attested by the complainant Jiban Sutradhar himself, it transpires that the DLA Tulshi Sutradhar was admitted to female ward of that hospital on 01.05.2010 to 07.05.2010. It goes to show that the DLA was admitted in that hospital for medical treatment on account of her suffering from Melena with CLD. From the proposal forms, it transpires that question No.11(ii) requires an information from the proposer as to whether the proposer have ever been admitted to any hospital or nursing home for general checkup, observation, treatment or operation, but the DLA answered ‘no’, although she was admitted in G.B.P.Hospital for her medical treatment on 01.05.2010 and was discharged on 07.05.2010. So, it is clear that the DLA gave a false answer by suppressing the fact of her admission for medical treatment in G.B.P.Hospital in respect of question No.11(ii) of the proposal forms. Furthermore, it is clear that this admission of the DLA in the hospital was only three months before the date of submission of her first proposal form for insurance.
24. From the employer certificate issued on 26.12.2013, it further appears that the DLA was on medical leave for her illness on and from 18.06.2010 to 28.06.2010 i.e. for 11 days and for the said 11 days the DLA was absent from her place of work. From the above, it is palpable that the DLA before submission of her first proposal form for insurance availed of such number of leaves on medical ground for the treatment of her illness. The DLA suppressed the fact of her availing of the leaves on medical ground for the treatment of her various ailments and remaining absent from her place of work, but the DLA in suppression of that fact falsely answered ‘no’ while giving answer to question No.11 (iii) of the proposal forms.
25. The second proposal form was submitted on 18.03.2011. The appellant-LICI filed photo-copies of some medical fitness certificate and the certificate of extension of medical leave attested by the complainant Jiban Sutradhar in the District Forum.  Admittedly, the photo-copies of some medical fitness certificates, certificates of extension of medical leaves, photo-copies of a prescription and photo-copy of a discharge certificate and photo-copies of some leave applications and photo-copies of some leave sanction orders along with a number of original documents so submitted before the Ld. District Forum from the side of the appellant-LICI have been taken as documentary evidences. Regarding those photo-copies of documents, the learned counsel for the respondents submitted referring to the decision of the Hon’ble Gauhati High Court reported in AIR 1980 Gauhati 55 that mere marking of an exhibit does not dispense with the proving of documents. He also submitted referring to the decision of the Hon’ble Apex Court reported in AIR 1994 Supreme Court 591 that the genuineness of documents is a fundamental question and hence, copies should have been accepted in evidence after examining original records. He also submitted referring to the decision of the Hon’ble Apex Court reported in AIR 2010 Supreme Court 1162 that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a  Court of Law. The learned counsel for the respondents also submitted that the LICI did not produce the doctor to prove the illness of the DLA and also did not call for the original record from the hospital and also did not examine the officer calling him as witness who issued the leave statements of the DLA. He also submitted that the LICI did not take any step in the District Forum calling for the original documents from the office where the DLA use to work as Group-D employee. He also submitted that in view of the above position, the photo-copies of the documents so produced by the LICI cannot be believed at all and the Ld. District Forum rightly placed no importance upon those photo-copies of documents.
26. Going through the referred case laws, we find that Hon’ble Gauhati High Court laid down the principles of law while deciding a case under the Land Acquisition Act, 1894. We also find that the Hon’ble Apex Court laid down the principles of law reported in AIR 1994 Supreme Court 591 in connection with the interpretation of Sections 62 and 63 of the Evidence Act in the matter of hearing of a civil appeal. We also find that the Hon’ble Apex Court has been pleased to laid down the principles of law reported in AIR 2010 Supreme Court 1162 in connection with the interpretation of Sections 64 of the Evidence Act connected with the hearing of criminal appeals. But the complaint case filed before the Ld. District forum is neither a civil suit nor a civil appeal nor a criminal appeal nor a criminal case. So, it is found that the principles of law laid down by the Hon’ble Gauhati High Court and the Hon’ble Supreme Court are related to the civil and criminal matters and not in connection with consumer cases under the Consumer Protection Act before the Consumer Fora
27. It has been held in the decision reported in 2000 Legal Eagle (J&K) 210 between Indian Airlines Corporation and others Vs. Farooq Ahamed pronounced on 27.09.2000 that in the adjudication of consumer disputes, the Technical Rules of Evidence will not apply and in the proceeding before the Consumer Fora, mere preponderance of probability may constitute adequate basis of the decision. It has also been held in the decision of a case reported in 2010 Legal Eagle (SC) 155 that the complaints before the Consumer Fora are tried summarily and the Evidence Act in term does not apply. It has also been held in para-8 of the said judgment that “This Court held in the case of Malay Kumar Gunguly Vs. Dr.Sukumar Mukharjee and others reported in (2009) 9 SCC 221 that provision of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”. So, in view of the principles of law laid down by the Hon’ble Apex Court reported in 2010 Legal Eagle (SC) 155, none of the reported cases referred by the learned counsel for the respondents is applicable in the instant case on the ground that the instant appeal has arisen out of the consumer case instituted under the Consumer Protection Act before the Consumer Fora.
28. The complainant as P.W.1 admitted his cross-examination that he produced the leave certificate of his mother, prescriptions, discharge certificate, leave petition before the insurance company. So, it is clear that the original of those photo-copies are lying either in the office of the DLA or in the possession of the complainant. Not only so, some photo-copies of the documents have been attested by the complainant himself while submitted before the LICI along with the claim application. The leave certificates issued by the office of DLA are original documents and as such cannot be disbelieved. Moreover, in view of the decision of the Hon’ble Apex Court, the Evidence Act in term does not apply in consumer case. So, we find no legal bar to accept those photo-copies of documents as believable and genuine documents.            
29. The question No.11(vii) speaks as to whether the proposer has any accident or injury. From the photo copy of medical prescription of the DLA Tulshi Sutradhar issued by Dr. Dipen Roy attested by the complainant himself, it transpires that on 29.03.2009 the DLA was under the treatment of Dr.Dipen Roy with the history of Trauma right side of chest. The said prescription also speaks that the DLA had fractured injury on her right 5th and 6th ribs and she was advised for 30 days rest. But the DLA answered ‘no’ while answering to question No.11 (vii) of both the proposal forms. From the photo-copies of those documents, it transpires that before the submission of the proposal forms for insurance the DLA was suffering from Hypertension with APD, pleural effusions with G.E.R.D. with A.dysentery, Hydrothorax right sided pleural effusion with splenomegaly, melena with CLD. From the medical journal “Heartline”, it transpires that hydrothorax is a type of pleural effusion in which serous fluid accumulates in the pleural cavity and this specific condition can be related to cirrhosis with ascites in which ascetic fluid leaks into the pleural cavity. Admittedly, the DLA died of cirrhosis of liver and Pulmonary Odima.
30. It transpires that the appellant-LICI made enquiry about the veracity of the statements of the DLA Tulshi Sutradhar made in answering to the different clauses of question No.11 of both the proposal forms submitted for insurance, following the provision of law embodied in Section 45 of the Insurance Act, 1938. The said Section 45 of the Insurance Act runs as follows :

          “45.Policy not to be called in question on ground of mis-statement after two years:- No policy of life insurance effected before the commencement of this Act shall, after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

          Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal”.

31. From the proviso to Section 45, it is apparent that it has got no nexus with the facts and circumstances of the instant case. It has been held in a case reported in AIR 2012 Madras 203 referred by the learned counsel for the respondents that repudiation beyond period of two years from the date on which policy was effected, is impermissible. It has also been held in the decision reported in AIR 2010 Calcutta 151 referred by the learned counsel for the respondents that after the expiry of two years, the validity and legality of policy cannot be questioned on any ground. It has also been held in another case reported in AIR 2001 Supreme Court 549 referred by the learned counsel for the respondents that repudiation of claim by the insurer merely on ground that the deceased had withheld correct information regarding his health at the time of effecting insurance with Corporation, is not proper. In the case in hand, we find the first policy was issued on 14.08.2010 and the second policy was issued on 21.05.2011, but the letter of repudiation was issued on 29.01.2014. It means that the LICI repudiated the claim of the complainant after the expiry of two years from the date on which both the policies were effected.
32. The Section 45 of the Insurance Act, 1938 empowers the Insurance Company to call in question about the statements made in the proposal forms for insurance even after the expiry of two years from the date on which the insurance policy was effected, but for that purpose three conditions require to be fulfilled as provided in Section 45 of the Insurance Act and also as laid down by the Hon’ble Apex Court in the decision reported in AIR 2001 SC 551 at para-12 of the said judgment wherefrom we find the said three conditions for applicability of Section 45 of the Act namely; (a) the statement on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.   
33. Considering the attested photo-copies of the documents, the deposition of the complainant as P.W.1 made in his cross-examination, we find nothing to disbelieve the veracity of those documents. That being the position, we are of the view that the submission made by the learned counsel for the respondents concerning those photo-copies of documents is not acceptable. Be that as it may, it has been well proved that the DLA Tulshi Sutradhar had been suffering from various illness and she was absent continuously even for a number of days from her place of work on account of her said illness, but she answered ‘no’ falsely in respect of question No.11(iii) of the proposal forms.
34. The question No.11(ix) speaks as to what has been the usual state of health of the proposer who gave answer ‘good’ in both the proposal forms, but it has been established that the DLA had been suffering from various ailments and she was compelled to remain absent from her place of work continuously for number of days together and therefore, these invariably lead to only one conclusion that at the time of filing the proposal forms for insurance the state of health of the proposer Tulshi Sutradhar was not good. So, it is clear that the DLA answered ‘no’ falsely in suppression of her actual state of health. The matter of withholding of the information regarding the various ailments of the DLA and also for her remaining absent from the place of work for days together and also her admission in G.B.P.Hospital for medical treatment and also her treatment under Dr.Dipen Roy for sustaining fracture injury are no doubt material facts and the DLA suppressed intentionally that material fact while giving answers in question No.11 of both the proposal forms for insurance. In view of the above position, there remains no longer any scope to say that the DLA was not aware regarding her illness, treatment and remaining absent from the place of work. It transpires from both the proposal forms that there is an endorsement of the DLA to the effect that she put her signature thereon knowing fully well the content of the proposal forms. It goes to establish that the DLA deliberately and fraudulently suppressed the material fact concerning her health status while submitting the proposal forms for insurance. The principles of law enunciated by the Hon’ble National Commission and the Hon’ble Apex Court have made it clear that the withholding of above information in the proposal forms tantamounts to suppression of material fact.
35. Going through the impugned judgment, we find that the Ld. District Forum practically accepted the alleged illness and taking of medical leaves for treatment casually, but in view of the principles of law enunciated by the Hon’ble National Commission and the Hon’ble Apex Court, we are of the view that the same cannot be treated as a casual matter, rather it is well established that the DLA deliberately suppressed the material fact and by furnishing wrong information knowing fully well as false and in suppression of the material fact influenced the LICI to accept the proposal forms for insurance and practically the LICI being induced for suppression of such material fact accepted both the proposal forms and issued both the insurance policies in favour of the DLA Tulshi Sutradhar. That being the position, we are of the view relying on the decisions of the Hon’ble Apex Court and the Hon’ble National Commission that the appellant-LICI rightly repudiated the claim of the complainant as both the insurance policies are the outcome of suppression of material fact. We are also of the view that the decision of the Hon’ble Gauhati High Court, Hon’ble Calcutta High Court and Hon’ble Madras High Court are not applicable in the instant case being the facts and circumstance of the instant case are altogether different from the facts and circumstances of the cases referred by the learned counsel for the respondents.
36. Admittedly, the DLA Tulshi Sutradhar died within two years from the date of submission of her first proposal form for insurance. So, the LICI is well within its right to question regarding the veracity of the statements mentioned in question No.11 of both the proposals for insurance, in view of the law provided in Section 45 of the Insurance Act, 1938 and also as laid down by the Hon’ble Apex Court reported in AIR 2001 SC 551 at para-12.
37. Admittedly, both the policies stood in the name of DLA are non-medical in nature regarding the medical examination of the DLA. The D.W.1 Rahul Deb who was examined in the District Forum for the LICI stated in his cross-examination that before issuing policy certificate, medical checkup of the deceased was not done. This statement of the D.W.1 taken in course of cross-examination will go against the complainant which makes it clear that DLA was not medically tested before issuance of both the insurance policies by the LICI. It is palpable that the LICI accepted both the proposal forms and issued both the insurance policies in favour of DLA believing in good faith on the answers made to question No.11 of the proposal forms as true, but it is now clear that the DLA suppressed the material fact while giving answers in respect of question No.11 as mentioned above and therefore, the DLA was at fault in not furnishing true material information to the LICI in her proposal forms. Relying on the principles of law enunciated in the decision reported AIR 1986 Kerala 2001 and the decision of the Hon’ble National Commission reported in III (2003) CPJ 15 (NC) in connection with Revision Petition No.1548 of 2000, we are, therefore, of the view that the appellant-LICI rightly repudiated the claim arising out of both the insurance policies issued in favour of the DLA.
38. From the finding made above, it is clear that the Ld. District Forum accepted the answers given by the proposer/DLA in the proposal forms in a very casual manner as regards question No.11 thereof, but the law of the land concerning the insurance policies is otherwise. That being the position, we are of the view that the finding of the Ld. District Forum awarding compensation by the impugned judgment is not sustainable in law. We are also of the view that the LICI rightly repudiated the claim of the complainant. That being the position, the impugned judgment calls for interference by this Appellate Authority and accordingly, the same is liable to be set aside and the appeal should be allowed.
39.  In the result, the appeal succeeds. The impugned judgment dated 20.03.2015 passed by the Ld. District Forum, Gomati District, Udaipur in case No. C.C.09/2014 stands set aside. There is no order as to costs.

 

 

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