1. This is a case of deficiency of service of the Life Insurance Corporation of India (hereinafter ‘LICI’ for short) as alleged by the legal heir of Deceased Life Assured (hereinafter ‘DLA’ for short) for repudiation of insurance claim without any basis.
2. Backdrop of the case, in brief, is that Smti Moni Das (hereinafter referred to as ‘the complainant’), the wife of DLA Late Uttam Das, filed an application under Section 12 of the Consumer Protection Act, 1986 (hereinafter ‘the Act’ for short) stating inter alia that the DLA during his lifetime obtained two policies viz. No. 485031789 and No. 485031590 covering Rs. 1,00,000/- and Rs. 2,00,000/- respectively as sum assured from LICI (hereinafter referred to as ‘the opposite party’). That the DLA having died on 12/10/2010, the complainant, along with all supporting documents, had been approaching the opposite party time and again for settlement of the death claim, but ultimately the opposite party repudiated the claim without any basis. Hence, the complainant has sought for redressal of her grievances along with costs to compensate her financial loss, physical sufferings and mental pain etc.
3. On referring the complaint the opposite party in its written version of the case, denying all averments of allegations made in the complaint, stated that the DLA was an employee in the railway department and on verification from the railway department the opposite party could come to know that prior to the submission of proposals for obtaining insurance coverage the DLA was suffering from various diseases like hepatitis, Melina etc. for which he availed leaves for several periods on medical ground; but the DLA did not disclose these particulars and information at the time of submitting his proposal forms. It is also stated that the act of concealment of material facts and misstatements offered by the DLA in the proposal forms made the contracts void ab initio and thus, on justified reasons the claims were repudiated for protecting the public interest.
4. From the complainant side two witnesses namely, the complainant and Shri Putul Chandra Nath, have been examined as PW1 and PW2 respectively and they have been duly cross-examined. The opposite party has examined one witness namely, Shri Rakhal Chandra Das as DW1 who has also been duly cross-examined.
5. From the pleadings of the parties it is apparent that the fact that the DLA obtained two policies from the opposite party is not disputed. Though the opposite party has raised various pleas about non-joinder of necessary parties; complaint is barred by principle of waiver, estoppels and acquiescence etc., jurisdiction of this Forum being very limited as contemplated under Section 14 of the Act, and also from the trend of evidence of the opposite party finding that repudiation of claim is being mainly surrounded by a particular fact, i.e. at the time of submitting proposal for insurance coverage the DLA deliberately withheld disclosing his serious ailments, our discussions and decisions are confined to the following issues:
I S S U E S
(1) Whether the DLA had ever suppressed/ concealed the fact of his serious ailments at the time of submitting proposal for obtaining insurance coverage in question?
(2) Whether the opposite party has repudiated the claim of the
complainant in a justifiable manner?
(3) To what relief/ reliefs the parties are entitled?
6. ISSUE No. 1
(a) The complainant in her application under Section 12 of the Act and as PW1 in her evidence-in-chief amongst various statements asserted that the DLA obtained two policies bearing Nos. 485031789 and 485031590 for insurance coverage of Rs. 1,00,000/- and 2,00,000/- respectively and her husband, the DLA, having died on 12/10/2010 observing due formalities the complainant repeatedly requested the opposite party for settlement of the claim. PW2 in his evidence-in-chief has extended support to PW1 so far this part of evidence is concerned. PW1 further stated that the opposite party, instead of resolving the claim, sought for documents after documents and ultimately repudiated the claim without any basis.
(b) The opposite party in its version of the case, amongst other resistance, stated that the DLA was a railway employee who availed leave on medical ground for different periods within a span of three years prior to obtaining the policies in question and he was under treatment from 13/12/2008 to 20/03/2009 for his diseases like hepatitis, Melina etc. but the DLA at the time of submitting proposal for insurance coverage concealed these facts. It is further stated that the act of the DLA as regards deviation, concealment or untrue statement furnished in the format of the proposal has rendered the contract between the DLA and the opposite party void ab-initio and thus the complainant is not entitled to any claim.
Since the opposite party has raised this fact in issue to take the benefit of Section 45 0f the Insurance Act, 1938, burden lies on the opposite party to substantiate this plea.
(c) PW2, during cross-examination, denied the suggestion put by the opposite party that prior to the offering of proposal for insurance coverage DLA had suffered from diseases like jaundice, Melina, hepatitis and he had opened the policies in question concealing the fact of those diseases. PW1, the wife of the DLA as well as the complainant of this case, in her cross-examination straightway stated that her husband previously did not suffer from any disease. She also denied the suggestions put to her by the opposite party that prior to obtaining the policies her husband having suffered from various ailments her husband had availed leave from his department and prior to obtaining the policies her husband having suffered from Melina, jaundice hepatitis her husband was under treatment in Nagaon Civil Hospital.
(d) Since nothing could be elicited from the witnesses of the complainant side during cross-examination entire responsibility has to be shouldered by the opposite party that the statement as regards health condition of the DLA made in the format of the proposal for insurance was inaccurate or false.
(e) To discharge the burden, the opposite party examined Shri Rakhal Das, Administrative Officer of the opposite party, as DW1.
(f) DW1 in his evidence-in-chief pressed into a medical certificate marked as Ext Ka(2). The medical certificate reads:
“This is to certify that (L) Uttam Kr. Das, 30 years (thirty) s/o (L) Dimbeswar Das, Chapormukh, maruary patty, P.O. Chaparmukh, Nagaon, (A) was suffering from “Hepatitis i.e. jaundice due to bilary pathology and melaena due to D.U.” He was under my treatment from 13.12.2008 to 20.03.2009. He was advised rest with treatment from 13.12.2008 to 20.03.2009 only.”
(g) DW1 also pressed into another document viz. Claim Enquiry Report marked as Ext Ka(3). This report, as indicated by rubber stamp, purportedly signed by Sailesh Biswas, Branch Manager, LICI, Hojai Branch. Ext Ka(3) is a printed format of questionnaire. In the said Ext Ka(3) Question 2(B) and its answer are as follows:
“Mention any critical information related to health & habit of the DLA gathered during the enquiries.”
“DLA was alcoholic and was suffering from high blood pressure and heart disease”
(h) In the said Ext Ka(3) Question 12 and its answer are as follows:
“Ascertain the name of DLA’s usual medical attendant and enquire of him whether he had occasion to treat the LA for any illnesses/diseases. If the period of treatment is prior to the date of proposal/revival, obtain necessary certificate giving particulars of diagnosis, exact period of treatment and the details of treatment given including prescription of medicines, tests etc. (Please get the COT completed from the Doctor). Efforts should be made to obtain the names of other doctors/hospitals also to whom the DLA might have referred to for consultation/treatment/special tests.”
“The claimant do not possess the treatment Particulars. The DLA was not in good health since 2007 as stated in the leave record. Copy enclosed”
(i) It is also stated in the Answer to Question 8 in Ext Ka(3) “Leave record enclosed”
(j) Now, taking into consideration of the above exhibited documents it is apparent that in the medical certificate Ext Ka(2) nothing has been mentioned about high blood pressure and heart disease as has been mentioned in Ext Ka(3) in the answer to question 2(B). On the other hand Ext Ka(3) is quite silent about the diseases recorded in Ext Ka(2). However, for the sake of argument opposite party may insist that high blood pressure and heart disease are also grounds for refusal for acceptance of the proposal for insurance coverage. But there is no indication as to whether the person who conducted enquiry as to the claim is a medical practitioner. Besides that the claim enquiry was conducted after the death of the life assured, but there is no clue or hint as to how the investigator could say that the DLA was suffering from high blood pressure and heart disease. That apart, Ext Ka(3) contains four sheets out of which first page is filled in by different ink having no resemblance with that of the handwritings found on the rest of the sheets. There is no material to show that the author of Ext Ka(3) is a public servant and under such circumstances, it is the duty of the opposite party to bring the author of Ext Ka(3) in the witness box, to ascertain the veracity of the content of the document.
(k) Regarding the DLA suffering from diseases like hepatitis, Melina etc., opposite party has relied on Ext Ka(2). As discussed at paragraphs 6 (h) and (i) above, in support of Ext Ka(3), the Claim Enquiry Report, opposite party has enclosed a copy of leave statement [marked as Ext Ka(4)] obtaining from Railway Department. Now, observing these two documents, viz. Ext Ka(2) and Ext Ka(4) it is apparent that though the attending physician, by Ext Ka(2), had advised the DLA for rest with treatment from 13/12/2008 to 20/03/2009 this period does not tally with that of Ext Ka(4). According to Ext Ka(4) the DLA was on leave from 13/12/2008 to 03/02/2009 and again from 01/03/2009 to 20/07/2009 which goes to show that from 04/02/2009 to 28/02/2009 the DLA was on duty. Ext Ka(4) does not reveal in its any part that the DLA had suffered from serious ailment. Besides that some of the letters and figures in Ext Ka(2) are found to be overwritten by different ink without being supported by any initials. But the opposite party has not brought the author of Ext Ka(2) in the witness box and in this context stand of the opposite party is that Ext Ka(2) is being a public document it is not required to be proved in a legal proceeding.
(l) Section 74 in The Indian Evidence Act, 1872, is clear as to what type of document would assume the character or status of a public document.
Section 74: Public documents- The following documents are 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, or of any
part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of public documents.
Viewed from the above provision, all public documents are required to be kept as records in some special custody. The manner in which Ext Ka(2) is prepared and delivered, that it does not contain any file number; serial number; issue number or any indication, no prudent person will be convinced that any record of this document is kept in some special custody. Such being the position Ext Ka(2) cannot be accepted as a public document.
(m) In the above hypothesis Ext Ka(2) is a private document and in the legal proceeding party insisting such document to be accepted as a piece of documentary evidence must prove the document in a legal manner.
(n) Taking into totality of the entire materials available on record, as have been revealed during the discussion under Issue No. 1, we are constrained to hold that the opposite party has awfully failed to establish that the DLA had ever suffered from such disease that the opposite party would be able to take recourse to Section 45 of the Insurance Act, 1938, in repudiating the claim of the complainant. Hence, this issue is answered in the negative and in favour of the complainant.
7. ISSUE No. 2
The complainant has stated that the DLA obtained two policies and during evidence complainant pressed into as many as 14 numbers of documents; opposite party has not denied the policies except, during cross-examination, submitting that the documents are under objection. Reason of objection is also not explained by the opposite party. The opposite party also does not raise any question on the Xerox copies of policies bearing No. 485031789 and No. 485031590. Rather in the version of the case at paragraph 11 in some way admitted that the DLA procured these two policies. The main contention of the opposite party is that the DLA had suppressed/ concealed the fact of his serious ailments at the time of submitting proposal for obtaining insurance coverage in question hence in view of the provisions laid under Section 45 of the Insurance Act, 1938, the contract between the insured and the insurer is asserted as void from the initial stage and claim of the complainant is found to be inoperative. But the insurer, that is, the opposite party has not succeeded in establishing its plea as has been discussed under Issue No. 1 above. Such being the position repudiation of claim of the complainant is not made in a justifiable manner.
Accordingly this issue is answered.
8. ISSUE No. 3
(a) It is admitted fact that the DLA obtained two policies viz. policy No. 485031789 and policy No. 485031590. Death of the DLA and the complainant’s status as wife of the DLA are also not disputed. As discussed under Issue No.1 and Issue No. 2 above that the opposite party is not entitled to take the benefit of Section 45 0f the Insurance Act, 1938, and repudiation of claim of the complainant is not made in a justifiable manner respectively, the complainant is entitled to get entire benefit of insurance coverage promised by two policies in question.
That apart, the complainant has been deprived of her legitimate claim for which she has to move from pillar to post for a considerable period to establish the genuineness of her claim and thereby she has been suffering a lot, financially, physically and mentally. Such being the position the complainant is not only entitled to get interest on the sum assured from the date of her claim before this Forum but also entitled to get an additional amount as compensation to solace her physical and mental tiredness as well as financial involvement.
ORDER
The opposite party Life Insurance Corporation of India is hereby ordered to disburse the assured sum covered by policies No. 485031789 and No. 485031590 along with accumulated bonus/interest thereon to the legal heir and /or nominee of the DLA obtaining proper identification within 30 (thirty) days from the date of receipt of this order.
The opposite party Life Insurance Corporation of India is further ordered to pay interest at the rate of 6% per annum on the total sum (i.e. sum assured plus bonus/interest thereon) from that date of filing this case, that is, with effect from 27/08/2015 till the date of finally settled the disbursement of the due amount.
It is further ordered that Life Insurance Corporation of India shall pay a sum of Rs. 10,000/- (Rupees ten thousand) only as compensation and another sum of Rs. 5,000/- (Rupees five thousand) only as costs of the litigation to the complainant along with the payment of assured sum as has been indicated above.
Given under our hand and seal of this Forum this 30th day of June, 2017.
