JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by one Kumari Santrupti through her natural guardian against the Opposite LIC for to direct the opposite to pay an assured sum of Rs. 1,00,000/- towards policy of deceased, to pay a compensation amount of Rs. 25,000/- towards mental harassment with cost and interest with any other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainant case are that, late Chinna Mallayya Swamy is the father of the complainant, his wife Shailashree who is the natural mother of the complainant subscribed LIC policy with opposite bearing No. 661449713 on 20-03-06 for an assured sum of Rs. 1,00,000/-. The mother of the complainant Shailashree made the complainant as a nominee under the said policy. Shailashree died on 25-08-07, complainant through her grand mother Umadevi filed claim petition along with necessary documents before opposite LIC, but opposite repudiated the claim of complainant on the ground that the policyholder Shailashree with-held material informations regarding her health at the time of taking policy. The ground stated by the opposite for repudiating her claim is illegal. She got issued notice but opposite shown its negligence in settling her claim. This complaint is filed for the reliefs as prayed in it. 2. Opposite LIC appeared in this case through its Advocate, filed written version by admitting the policy taken by Shailashree for assured sum of Rs. 1,00,000/-. It is contended by it that, the said Shailashree who is the mother of the complainant obtained policy by suppressing material facts and by giving wrong answers in the proposal form. She took treatment for Acute Bronchitis with one Dr. Shivaraj Patil of Raichur. She availed sick leave on that ground, as such the policy rightly repudiated by it, there was no negligence on its part and prayed for to dismiss the complaint among other grounds with cost. 3. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, her mother Shailashree obtained LIC bearing No. 661449713 for assured sum of Rs. 1,00,000/- from opposite LIC who died on 25-08-07 thereafter she filed a claim petition before opposite with necessary records being the nominee under the said policy, but opposite repudiated her claim on untenable ground it shows its negligence and thereby opposite LIC found found guilty under deficiency in its services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint.? 3. What order? 4. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 5. To prove the facts involved in this point, affidavit-evidence of guardian of the complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-4 are marked. On the other hand the affidavit-evidence of Administrative Officer of opposite LIC was filed, he was noted as RW.1. The documents Ex.R-1 to Ex.R-13 are marked. Affidavit-evidence of Private Doctor by name Shivaraj Patil of Raichur said to have treated Shailashree before her death was filed and he was noted as RW-2. 6. In the instant case, some of the undisputed facts between the parties are:- 1. Subscription of LIC policy from opposite by Smt. Shailashree at her life time bearing No. 661449713 dt. 20-03-06 for assured sum of Rs. 1,00,000/- in the event of her death is not in dispute. 2. It is undisputed fact that present complainant Kumari Santrupti is the nominee under the said policy. 3. It is undisputed fact that policyholder Smt. Shailashree died on 25-08-07. 4. Further it is undisputed fact that this complainant filed claim petition through her guardian with necessary records before opposite LIC for to make the payment of the assured sum under the policy. 5. It is further undisputed fact that the opposite LIC repudiated all the liabilities under the said policy on the ground that policyholder Shailashree with held correct information regarding reasons for her death vide repudiation letter Ex.P-3 and Ex.R-2. 7. In the light of undisputed facts between the parties, it is not necessary for us to appreciate documents Ex.P-1, Ex.R-1 copies of LIC, Ex.P-2 death certificate of Shailashree, Ex.P-4 copy of the legal notice, Ex.R-3 Certificate of Identity and Burial or Cremation of Shailashree, Ex.R-4 Medical Attendance Certificate of the hospital regarding the treatment, Ex.R-5 another certificate of the hospital regarding treatment and Ex.R-11 death certificate. 8. Now the only point for our consideration and determination is as to whether Shailashree obtained LIC policy referred above by suppressing the material facts and giving wrong answers in submitting her proposal form and thereby opposite has rightly repudiated the claim of complainant under the said policy. 9. In this regard we have referred the principles of the ruling reported in 1996(3) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. As per the law laid down by the Honble Supreme Court in the said ruling, the burden of proving that insured had made false representation and suppression of material facts undoubtedly is on LIC of India. 10. Further their lordships observed as concealment of some facts will not amount to the concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy would be vitiated, otherwise not. 11. In the ruling reported in AIR 2000 Supreme Court 1040 M/s. Modern Insulator Ltd., V/s. Oriental Insurance Co. Ltd., the Honble Supreme Court held as fundamental principles of insurance law that utmost on good faith, it cannot be obsolved by the contracting parties and good faith for bids either party from non discharging of the facts with the party known. The insurer has the duty to disclose and similarly it is the duty of insurance company and its agent to disclose of the material facts in their knowledge, since the obligations of good faith applies to both equally. 12. Now it is very much clear from the principles of law laid down by the Supreme Court about the fundamental principles of insurance law which depends on the good faith of both parties, in case of suppression of material facts, it is the duty of insurance company to prove it. Hence it is law that the burden of proving the suppression of material facts by giving wrong answers in filing proposal form by the Shailashree is on the insurer opposite LIC. 13. Now we have to see, what is the meaning of suppression of facts. This was defined by the Honble Supreme Court in a ruling reported in 1997(10) SCC 538 Collectors of Customs Calcutta V/s. Tin Plate Company of India, as per the definition given by the Honble Supreme Court in the said ruling, the word suppression of fact means envisage a deliberate or conscious omission to state with the intention of deriving wrongful gain, in the similar way their lordships of the Honble National Commission, Delhi in a ruling reported in 2005 CTJ (CP) in a case of National Insurance Company V/s. Bipul kunda defined as, the word of mis-representation means suggestion of false in the matter of substance essentially material to the subject, whether by acts or by words, by man overs of by positive assertion or material concealment where a person mis-lead and daminify. 14. Keeping in view of the principles by their lordships of the Honble Supreme Court and the National Commission with regard to the meaning of mis-representation or suppression of material facts and the burden of proving it, we have to appreciate the present case of the parties. Admittedly the claim of complainant was repudiated by LIC on the ground that the policyholder Shailashree obtained the policy by suppression of the material facts as she was suffering from Acute Bronchitis and took treatment with one Dr. Shivaraj Patil of Raichur. To substantiate this ground opposite LIC relied on Ex.R-4 & Ex.R-5 which are Medical Attendance Certificate and certificate of hospital treatment issued by Residential Medical Officer, Basaveshwara Teaching & General Hospital, Gulbarga. In the said two documents primary cause of death was due to Cardio Respiratory Arrest and secondary cause of death was shown as R.V.D.C pneumonia. The date of admission in the said hospital shows as 14-08-07 and discharged on 16-08-07, thereafter Shailashree died on 25-08-07. Apart from these two documents opposite has relied on Ex.R-7 the copy of the leave letter of Shailashree on medical ground from 01-01-06 to 11-01-06, Ex.P-8 another leave letter from 05-12-05 to 09-12-05, Ex.R-9 is leave letter from 17-10-05 to 28-10-05, Ex.R-10 is another leave letter of Shailashree from 10-12-05 to 22-10-05. All these leave letters said to have availed by Shailashree on medical grounds supported by doctor certificates. Now the point for our consideration is whether Shailashree intentionally concealed the above facts regarding her health condition prior to obtaining the LIC policy for wrongful gain. As per the records available, she obtained LIC policy on 20-03-06 by filing her proposal form as per Ex.R-1. In the said form she stated her health condition was Good. As regards answers to other questions she stated as No. This proposal form was accepted by Divisional Office, LIC after getting medical examination by its own doctor and thereafter till the date of repudiation of the claim of complainant opposite LIC not raised any objections regarding the statement given by Shailashree in her proposal form at Ex.R-1. First time LIC took such contention in its repudiation letters at Ex.R-3 & Ex.R-12. Keeping in mind of the above facts, now we have to see as to whether she not intentionally disclosed such disease in her proposal form to hold that, she mis-represented or suppressed her health condition. There are no evidences out coming from the side of the opposite to hold that Shailashree intentionally suppressed such disease only with an intention to get wrongful gain from the opposite Insurance Company through proposal form to subscribe LIC policy. Apart from it we are not in a position to accept that the Acute Bronchitis is not a disease to expect sudden death of her and thereby she intentionally suppressed it wrongful gain. In the light of the above circumstances, we have followed the principles of the ruling reported in 2009 CTJ 1170 (CP) SCDRC Vijayendra Kumar V/s. LIC of India and another, their lordships of the Honble Supreme Court observed as if insured suffering from temporary illness such as fever, cough, cold, omitting etc., same was not mentioned at the time of taking insurance policy, it cannot be said that mis-statement was made by them. 15. In the light of the facts and circumstances of the principles of the above case, we are of the view that facts of the present case on hand squarely false in the ambit of said principles and thereby repudiating the genuine claim of the complainant by LIC is nothing but negligence in its service, accordingly LIC of India found guilty under deficiency in its service towards the complainant and thereby we answered Point No-1 in affirmative. POINT NO.2:- 16. Admittedly the assured sum of the policy subscribed by Shailashree is of Rs. 1,00,000/- complainant being the nominee under the said policy, she is entitled to get an amount of Rs. 1,00,000/- from opposite LIC under the policy. 17. The complainant prayed for to award compensation amount of Rs. 25,000/- towards mental agony and prayed for to grant an amount of Rs. 10,000/- as the cost of this litigation. We have taken note of the entire facts and circumstances of this case and we are of the view that the complainant is entitled to get an amount of Rs. 3,000/- under the head of the deficiency in service and she is entitled to get an amount of Rs. 2,000/- towards cost of this litigation, as such she is entitled to recover a total amount of Rs 1,05,000/-. 18. As regards to the rate of interest claimed, we are of the view that it is a proper and fit case to grant interest at the rate of 9% p.a. on the total sum of Rs. 1,05,000/- and the complainant is entitled for to recover of the said rate of interest from the date of this complaint till realization of the full amount, accordingly we answered Point No.2. POINT NO.3:- 19. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 1,05,000/- from the opposite LIC. The complainant also entitled to recover future interest at the rate of interest 9% p.a. on the above total sum from the date of the judgment till realization of the full amount. 60% of the total amount shall be kept in the name of minor complainant till her marriage. The balance amount shall be released to her to meet out her personal expenses. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 04-12-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur.
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