ORDER NO. 4  DT. 13.1.2011

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Appellants through Ms. S.Roy Chowdhury and the Respondent through Mr. Subrata Ghosh, Ld. Advocates, are present.  Heard both sides in full.  Judgement is delivered as under :-

This Appeal is by the insurer against the judgement and order dt. 11.5.10 passed by the Burdwan District Consumer Forum in D.F. Case No. 56/2009         thereby allowing the claim case by holding that the complainant is entitled to the death benefit amounting to Rs. 2,50,000/- against the Life Insurance Policy No. 465637027 issued by the Appellant/Insurer together with compensation and litigation cost of Rs. 10,000/- and Rs. 1,000/- respectively.  Admittedly the aforesaid policy stood in the name of one Khokan Chandra, since deceased, and the complainant as his brother had been made the nominee of the said deceased in the said policy.  The said insurance policy was taken on 28.10.04 for 25 years with the date of maturity as on 28.10.29.  It is also not in dispute that the said insured died on 18.2.05.

It appears from the records of this case that the said insurer on the death of the insured did not settle the claim as raised by the complainant. A complaint being D.F. Case No. 19 of 2006 was filed by the complainant before the concerned District Forum.  The said complaint case was disposed of with a direction upon the insurer to settle the claim of the complainant within 45 days thereof.  The insurer since thereafter repudiated the claim of the complainant on the ground that the date of birth as disclosed in the proposal form by the insured at the time of taking of the said policy was not proved by any document.  The complaint case was accordingly filed by the complainant which has been allowed on contest.

It was alleged by the insurer that the insured produced a school certificate in support of his date of birth at the time of taking the policy.  Before the Forum below the OP/Insurer produced a letter of the Head Teacher of the school stating that the school certificate that was produced at the time of taking of the policy had not been issued by the school.  On behalf of the complainant an affidavit sworn by the mother of the deceased insured was filed by clearly stating the date of birth as disclosed in the proposal form.  In these facts and circumstances a question has arisen for decision in this Appeal, as to whether the said insurance policy was obtained by the deceased insured by practising fraud so as to justify the repudiation of the claim by the insurer in terms of Section 45 of the Insurance Act.

Upon careful reading of all the records relating to this case it is evident that 11.10.86 had been disclosed as the date of birth of the deceased insured in the proposal form.  In support of such declaration it has been alleged by the insurer that a school certificate was produced by the insured.  The said certificate has also not been produced at the hearing of the claim case before the Forum below.  On the other hand, a letter dt. 14.3.07 written by the Head Teacher of Madanpur Prathamik Vidyalaya of Burdwan to the Branch Manager, LICI, was produced before the District Forum to show that no such certificate was issued from the said school to the insured. 

Therefore, on the issue as to the actual date of birth two documents as above have come up for consideration.  It is evident therefrom that the proposal form as submitted by the insured by disclosing the date of birth as on 11.10.86 was accepted by the insurance company without raising any dispute as to the same.  Regular payments of premium were also made and accepted by the insurer.  There is also no material whatsoever to establish that when the first complaint case was filed for non-settlement of the claim as raised by the complainant the insurer raised any dispute as to the wrong disclosure of the date of birth of the insured.  Only after the aforesaid claim case was disposed of with a direction upon the insurer to settle the claim case within 45 days from the date of disposal of the said claim case, the insurer procured the said letter from the Head Teacher of the aforesaid school.  The said letter at best goes to show that the date of birth as disclosed in the said proposal form was not verified by the said school.    But the mother of the deceased has clearly stated in her affidavit that the date of birth of the deceased insured is on 11.10.86 as disclosed in the proposal form.  Therefore, in a contrast between the two documents as aforesaid we are inclined to put reliance on the affidavit of the mother by disclosing the date of birth of his son, the deceased insured as on 11.10.86. 

The contention that has been made on behalf of the insurer/Appellant that in the facts and circumstances the insurance policy was obtained by practising fraud cannot also be entertained simply for the reason that unless a particular date of birth other than 11.10.86 is ascribed to the deceased insured and proved that the deceased insured disclosed such date of birth in the proposal form only for the purpose of reaping benefit unlawfully, it cannot be said that fraud was practiced by the insured.  Here in this case no particular date has been proved to be the date of birth of the deceased insured.  Nor any cogent document has been filed to establish that his date of birth was other than 11.10.86.  On the contrary, her mother by filing an affidavit has disclosed the same as the date of birth of his deceased son.  The said mother has also not been cross-examined by the insurer before the Forum below. 

The decision of the Hon’ble Supreme Court cited by the Appellant/insurer reported in 2006 (7) Supreme at page-156 also does not have any application in the facts and circumstances of this case.  In the said case a mis-declaration was made falsely by stating that the Respondent’s wife was a teacher even though it was accepted that she was really not a teacher.  In the case in hand it has nowhere been proved that 11.10.86 was in fact not the date of birth of the deceased insured and such declaration was made falsely.  The insurer has only been able to raise a doubt as to the declaration, so made by the insured, on the basis of the aforesaid letter written by the Head Teacher of the above school.  The doubt so raised cannot take the place of proof in the absence of cogent evidence.  The said letter has been rebutted by the clear affidavit of the mother of the deceased insured.  The decision of the Hon’ble Supreme Court, therefore, is distinguishable in the facts of the case in hand.

For the reasons as aforesaid we do not find any material to interfere with the impugned judgement and order of the Forum below.  The Appeal is accordingly dismissed.