Per Shri P.N.Kashalkar,  Hon’ble Presiding Judicial Member :

        This appeal has been filed by org.complainant whose complaint has been dismissed by the District Consumer Disputes Redressal Forum, Central Mumbai in consumer complaint no.64/2009 by the judgement delivered on 24/09/2009.  The facts to the extent material to decide this appeal may be stated as under:

         Appellants herein were the complainants in the Forum below.  Appellant no.1 is the Consumer Welfare Association and it had filed consumer complaint on behalf of complainant no.2/widow of deceased insured Shri Vijay Kumar Amritlal Jaiswal.  Both of them had filed a consumer complaint against Tata AIG Life Insurance Co. Ltd.  The deceased had purchased policy by paying one time insurance premium.  Policy commenced from 27/12/2007 and it was to be in force for the period of 15 years.  The sum assured was RS.1,50,000/- as against the death of insured.  The insured died in vehicle accident on 30/01/2008.  This was confirmed by FIR lodged in Vashi police station and post mortem report revealed that cause of death of Shri Vijay Kumar Amritlal Jaiswal was due to “Haemorrhage and Shock due to multiple injuries”.  Complainant no.2 had lodged an insurance claim seeking Rs.1,50,00/- from the insurance company after the demise of her husband in the accident.  However, claim was repudiated by the insurance company on 25/05/2008 on the ground that deceased was suffering from diabetes since 2001 and from mutifocal choroilditis since May 2005 and this was not disclosed in proposal form dated 12/12/2007.  Thereafter complainant no.2 approached complainant no.1/ the Consumer Welfare Association, who wrote a letter to the insurance company to accept the claim of complainant no.2.  But there was no response, hence consumer complaint came be to be filed on 03/03/2009 with an allegation that there was deficiency in service on the part of opp.party/insurance  company and they had simply offered sum of Rs. 22,690.80 whereas policy benefit was Rs.1,50,000/-.  The complainant prayed that claim of Rs.1,50,00/- should be given plus interest @18% p.a.  Complainants also claimed compensation of Rs.50,000/- for mental trauma, the complainant no.2 was suffering as result of financial distress and they have also claimed cost of Rs.5,000/-.

        Opp.party/insurance company contested the complaint and filed written statement.  According to opp.party, the insured person was bound to reveal his medical history in the application signed by him but he did not disclose the diseases.  He was suffering from in the year 2001 and 2005.  Opp.party pleaded that deceased had filled up the application form giving details as required in the form for assured sum of Rs.1Lakh and Rs.1,50,000/- respectively.  The premium for the above policies were RS.4,851/- and Rs.30.000/- respectively and opponent has attached the copy of the application forms dtd.09/12/2005 and 12/12/2007.  Opp.party further pleaded as per terms and conditions of the policies the insured person has to disclose all the material facts which shall form the basis of the contract of insurance and nondisclosure of which shall cause the policy void.  Opp.party pleaded that since he had not disclosed his ailment of diabetes and that he had undergone mutifocal choroiditits, they had repudiated the claim rightly and policy became void because of nondisclosure of material facts like suffering from diabetes since 2001 and from mutifocal choroilditis since May 2005.  They therefore pleaded that complaint should be dismissed with cost.

        Upon hearing rival Counsels and relying on certain judgements, the Forum below held that the statement on material facts was suppressed by the proposer when it was his duty to discuss the same and that policy holder was knowing at the time making all the statement that it was false then in such circumstances there can be fraudulent suppression of material facts and Forum below held that in the instant case there was material suppression on the part of insured.  He had not disclosed that he was suffering from diabetes since 2001 and from mutifocal choroilditis since May 2005, whereas opp.party have produced copies of material on record of Smt. Motiben Hospital which clearly showed that insured was suffering from the above said diseases from eight years prior to purchase the policy in 2007.    

        On the basis of suppression of material facts, the Forum below held that complainant cannot be awarded compensation as demanded by them and it was pleased to dismiss the complaint.  The Forum below directed to return a cheque of Rs.22,690.80 towards the invest assure plus policy to complainant no.2.  Aggrieved by the dismissal of the main claim, the complainants have filed this appeal.

        We heard submissions of Mr.J.B.Gai/A.R. for the appellant and Adv.Mr.Ashutosh Marathe for respondent.

        We are of the view that in the instant case question of suppression of material facts or nondisclosure of material facts amounting to fraud did not arise for the simple reason that this was the case of accident.  The husband of the appellant no.2 met with an accident when he was driving the vehicle on 31/01/2008.  In the case of death due to accident there is no question of repudiation of insurance  claim on the ground that deceased had suppressed material facts.  If there would have been death due to heart-attack, insurance company may say that they won’t pay the insurance claim because deceased had suppressed material facts pertinent to diabetes mellitus and that he had undergone certain operations which he had not disclosed.  If there is nexus between the ailment suffered by the insured person and ultimate death caused by some related disease, insurance company would be justified saying that deceased was guilty of suppression of material facts and as such, policy was rendered void.  In the instant case, the deceased died in vehicle accident on 31/01/2008, FIR was lodged with Vashi police station and post mortem conducted by autopsy surgeon clearly revealed that deceased had died due to mutiple injuries.  So, this was a case in which insured had died because of accident and not because of any ailment so as to give just cause to the insurance company to repudiate the claim on the ground of nondisclosure of material facts.  So, there is no question of suppression of material facts.  Insurance company cannot be permitted to enrich itself by denying insurance claim in such type of cases which are genuine in nature.  It is true that in the case  of AIR 2008 Supreme Court 424 PJ Chacko V/s. LIC relied on by Counsel for the respondent/Adv.Mr.A.Marathe, Apex Court held that,“policy repudiation deliberate wrong answer given by insured having great bearing contract of insurance, policy may be repudiated.   Apex Court further held that, “the purpose of taking a policy is very material.  It may serve the purpose of social security but then the same be obtained with a fraudulent act by the insured.  Proposal can be repudiated if fraudulent act is discovered.  The proposer must show that his intention was bonafide.  It must appear from the face of record.  In this case the insure had undergone thyroid operation  In application from, answer “no” was given to the question, whether insured had been operated.  Insure died within 6 months of taking policy and the policy was obtained through his brother who was an authorised agent of LIC, it was not for the insurer to establish that the suppression was fraudulently made or that he must have been aware at the time making the statement that the same was false or that the fact was suppressed which was material to disclose.  Repudiation of policy was held proper.  Section 45 postulates repudiation within period of two years.  Proposal was bonafide.  It must appear form the face of the record.  A deliberate wrong which was a great bearing on contract of insurance, if discovered, may lea to the policy being vitiated.”  But in the instant case facts are different.  In our case there is death in an accident.  Death was not related to any ailment which deceased had suppressed while filing proposal form.  Might be that insured had suppressed material facts that he was suffering from diabetes since 2001 and from mutifocal choroilditis since May 2005.  That does not mean that insurance claim is based on accidental death should be negatived or repudiated if so facto.  In the case of B.V.Nagaraju VV/s. M/s. Oriental Insurance Co. Ltd., II(1996) CPJ 18 (SC) Hon’ble Supreme Court of India held that, “ Breach of carrying human in a goods vehicle more than the number permitted in terms of policy could not have attributed to the death of insured and therefore, the insurance policy must be construed by reading down exclusion term.  Supreme Court clearly held that the terms of the policy of insurance company should not be directly construed strictly or be read down to advance the main purpose of the contract as viewed by it in Skandia Insurance Co. Ltd. V/s. Kokilaben Chandravadan & Ors.  In the instant case decided by Supreme Court, appellant was owner of the truck bearing no.KA-13/438.  It was insured with Oriental Insurance Co. LTD under policy.  The period covered up to 123/08/1991.  Policy was comprehensive in nature and risk was limited up to Rs.2,09,000/-.  The vehicle met with an accident.  During the policy since it was dashed by gas tanker.  When claim made in respect of repair charges incurred by the owner, insurance  company repudiated the claim.  The appellant filed consumer complaint in Karnataka State Commission.  The State Commission by its order allowed the claim to the extent of Rs. 75,700/- as per surveyors report and Rs.2,000/- as costs.  The Hon’ble National Commission upset the said order in appeal relying on terms and conditions of the policy.  Hence, owner had to approach Supreme Court of India.  The claim was repudiated only on the ground that insured vehicle was entitled to carry six workmen excluding driver.  But there was 9 person travelling in the vehicle.  Supreme Court held that National Commission went for strict construction of exclusion clause.  The reasoning that extra passengers being carried in the goods vehicle could not have contributed in any manner, to the occurring of the accident was barely noticed and rejected san s any plausible account, even when the claim confining the damage to the vehicle only was limited in nature.  Supreme Court held that aforesaid terms of insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle and hence, they allowed the appeal filed by the owner of the vehicle setting aside the judgement of National Commission and restore the State Commission order in its entirety. 

        This judgement is squarely applicable to the facts and circumstances to our case.  Insured had taken insurance policy.  He met with an accident.  He died in vehicle accident.  Death was in accident is not disputed by the insurance company but insurance company repudiated the claim only on the ground that complainant was suffering from diabetes since 2001 and from mutifocal choroilditis since May 2005, that could be a ground valid for insurance company to repudiate the claim because this insurance claim involves death claim and death occurred due to vehicular accident.  In such type of cases applying the ratio of B.V.Nagaraju’s case, to advance cause of justice, the terms and conditions of the policy in so far as it relates to exclusion cause must be read down and therefore, ignoring the fact that insured had suppressed his ailment of diabetes since 2001 and from mutifocal choroilditis since May 2005, we held that cannot give any valid and sufficient ground for the insurance company to repudiate the claim of the widow of the insured.  As such, such claim must be allowed by allowing this appeal.

        We hold that insurance company was guilty of deficiency in service in repudiating this genuine claim simply pointing out the exclusion clause.  We further hold that insurance company like respondent cannot be allowed to enrich them by allowing them to repudiate the genuine claim in this fashion.  We hold that genuine claim like present one must be paid by insurance company without referring to the handy exclusion clause and we are aware that many a times the proposal form is filled by the agent of the insurance company and insured is simply required to put his signature, rest everything is filled in by the agent and this is a practice obtainable in most of the cases.  It is the duty of Courts and Commissions to safeguard the interest of poor and helpless person from cowed down from the mighty insurance company in this ruthless manner.  As such, we are inclined to allow this appeal to give some relief to the complainant.  Hence, we pass the following order:-

                                        :- ORDER :-

1.   Appeal is allowed.

2.   Impugned order is hereby quashed and set aside.

3.   Complaint stands allowed.

4.   Respondent/Insurance Company to pay Rs.1,50,000/-

 with interest @9% p.a. from the date of repudiation till actual

    realization of the amount.  Insurance company is directed to

    pay cost of Rs.5,000/- to appellant no.2.

5.  Copies of the order herein be furnished to the parties.