BRANCH MANAGER, L.I.C. OF INDIA vs Jayalakshmi

THIS appeal is directed against the order dated 23rd day of July, 1998 in O.P. No. 33/96 on the file of the District Consumer Disputes Redressal Forum, Thiruvannamalai.

THE appellants are the opposite parties while the respondent is the complainant. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

One P. Natarajan (since deceased) was the husband of one Smt. Jayalakshmi (complainant). The said Natarajan whilst alive took a policy of insurance on his life for a sum of Rs. 75,000/- on 28.4.1992. The policy number is 730087820. He had been regularly paying the quarterly premium without fail. While the policy was kept alive, it so happened that on 1.4.1994 he died due to heart attack at Vandavasi. He nominated the complainant, his wife, as the nominee. Subsequent to his death, his wife, the complainant made a claim on 31.5.1994 with the opposite parties. The claim so made was repudiated by them on the ground that the deceased while submitting the proposal for taking the policy of insurance suppressed vital factors relatable to his health and his addiction to alcoholic beverages.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint. The opposite parties Insurance Company in pith and substance would contend that true it is that the husband of the deceased namely, P. Natarajan took a policy of insurance for Rs. 75,000/- on 28.4.1992 and the policy was kept alive on the date of his death which event happened on 1.4.1994. They would claim that the insured deceased Natarajan while submitting the proposal, suppressed vital factors relatable to his health and his addiction to alcoholic beverages. The opposite parties, it appears, conducted an investigation, since the death of the assured happened within two years from the date of taking the policy and during the course of such investigation, they would say that the assured deceased took treatment for the ailments from which he had been suffering from Vellore CMC Hospital and also in the hospital of Dr. Hakeem S.Akbar Khouse at Vaniyambadi. In view of such suppression of material facts relatable to his health, they would say, that there was no other go except to repudiate the claim made by the nominee, wife of the deceased namely, the complainant. The complaint as such is liable to be dismissed.

THE Forum below after taking into consideration the materials placed on record, recorded a finding that the repudiation as made by the opposite parties is not at all justifiable on the facts and in the circumstances of the case and consequently stated that the repudiation of the claim as made by the complainant amounts to clear deficiency in service on the part of the opposite parties. Consequently, the Forum below directed the opposite parties to pay to the complainant a sum of Rs. 75,000/- being the policy amount with interest @ 18% per annum from 1.8.1994 till realisation and also to pay Rs. 5,000/- towards damages for mental agony and torture, and Rs. 500/- towards the cost of the proceedings within a period of 30 days from the date of receipt of its order. Aggrieved by the order as above, the opposite parties resorted to the present action by engaging a Counsel of their choice namely, learned Counsel Mr. R.S. Ramanathan. On service of process, the respondent/complainant entered appearance through a Counsel of her choice namely, learned Counsel M/s. K. Selvarangan and S. Palanivelayutham.

WE heard the arguments of learned Counsel Mr. R.S. Ramanathan appearing for the appellants/opposite parties and learned Counsel Mr. S. Palanivelayutham appearing for the respondent/complainant.

LEARNED Counsel Mr. R.S. Ramanathan appearing for the appellants/opposite parties would contend with all vehemence and force that the order of the Forum below cannot at all be sustained inasmuch as the order suffers from the serious infirmity of the pervasive materials placed on record. In elaboration of such an argument what he would say is that if the Forum below had properly construed the effect of the documents Exs. B2 and B3, the order now impugned in this action would not at all have been passed by the Forum below. Alternatively the said learned Counsel would urge that even assuming for argument sake that the Forum below had correctly construed the effect of the documents Exs. B2 and B3, the award of payment of interest at the rate of 18% per annum is not sustainable in law in view of the dictum of the Apex Court of the country that Insurance Companies cannot at all be mulcted with liability for the payment of interest far beyond 12%. He would further urge that the award of interest and compensation for mental agony and anguish are not permissible in law and either one of two things alone is capable of being granted and in this view of the matter, if interest is granted, it goes without saying that the award of compensation for mental agony and anguish as awarded by the Forum below has to be necessarily deleted. LEARNED Counsel Mr. S. Palanivelayutham appearing for the respondent/complainant would, however, strike a discordant note to the projection of hues of views made by learned Counsel Mr. R.S. Ramanathan appearing for the appellants/opposite parties. We shall now enter into the arena of discussion with regard to the projection of hues of views by the respective learned Counsel appearing for the parties.

There is no pale of controversy that the insured deceased P. Natarajan took a policy of insurance for Rs. 75,000/- on 28.4.1992. It is also not in dispute that the said assured died on 1.4.1994 at Vaniyambadi due to sudden heart attack. The array of dispute between the parties is that the assured/deceased suppressed vital factors relatable to his health and his addiction to alcoholic beverages at the time of submissions of proposal to the opposite parties for taking the policy of insurance covering the risk of his life. The question is whether there was any suppression of material facts relatable to health of the deceased assured as claimed by the opposite parties Insurance Company on the facts and in the circumstances of the case. No doubt true it is that while submitting the proposal under Ex. B1 the assured had categorically stated that he was not at all addicted to alcoholic beverages at any other time. Apart from himself not having any sort of disease getting afflicted, and therefore, he had not at all taken any treatment in any hospital. Top of all he had stated in the proposal that he was maintaining good health. In order to rebut such sort of a version as projected by the assured/deceased in the proposal the opposite parties Insurance Comapany produced two documents Exs. B2 and B3. Ex. B2 is the xerox copy of the record stated to have been maintained by the C.M.C. Hospital as relatable to the treatment said to have been given to the assured P. Natarajan. The Forum below rejected the document on the ground that the name of P. Natarajan was written in the top of the said exhibit in ink when especially the document itself is a xerox copy. Further the Forum below attributed another reason for the rejection of document that it was not signed by any of the authorities of the hospital. Along with Ex. B2, an outpatient record-sheet had also been filed. In the outpatient record-sheet so filed, the name of the deceased Natarajan had been stated categorically in typing and it also bears the Patient No. 771836-A. The some sort of Number we are able to see in Ex. B2. Therefore, this document Ex. B2 is relatable to the deceased P. Natarajan. It also bears the office seal of the CMC Hospital. The fact that the said record is not bearing the initial or signature of any of the authorities of the hospital does not mean that such a document is a fake document. Even assuming for argument sake that such a document is genuine and not a fake document, we are of the view that the said document cannot at all be expected to render any sort of a helping hand to the opposite parties Insurance Company. The reasons are rather obvious. On a perusal of the document Ex. B2, we are able to discern that the deceased assured appears to be an alcohol addict and he had taken treatment with the CMC Hospital at Vellore at some point of time prior to his taking the policy of insurance. There is a question 11(h) in the proposal under Ex. B1, which reads as under : "Do you use or have you ever used alcoholic drinks, narcotics or any other drugs ? The answer to the question made by the deceased assured is ''catergorical No''." As such it is crystal clear that the assured deceased had suppressed the factum of his having been addicted to the alcoholic liquor at the time of submissions of the proposal. The fact that such a suppression was there by itself we are of the view is not sufficient for the opposite parties Insurance Company to reject the claim as made by the complainant/nominee/wife of the deceased. The reason is this. It is not as if the deceased died due to consumption of alcoholic beverages. Admittedly the death of the deceased assured is due to heart attack. No material worth the name had been made available or placed on record to point out that the heart attack the deceased assured suffered was having any sort of a link with the consumption of alcoholic bevarages at any time prior to his suffering of heart attack, which resulted in his death.

THE other document on which an implicit reliance is placed by the opposite parties is the certificate issued by Dr. Hakeem S. Akbar Kausam, a native doctor practising at Vaniyambadi. By a cursory perusal or glance of the certificate so issued, we are able to discern that the said doctor had not been maintaining any records with regard to the patients he had treated. This aspect of the matter is getting revealed from the certificate he had issued under Ex. B3. Such being the case, we are unable to comprehend how it is feasible or possible for such a doctor to have a brain of computer to remember the names and disease of all the persons/patients he had treated and issue a certificate after the elapse of some time from taking of treatment with him by the patients and issue a certificate therefor as and when such persons, who had taken treatment with him had asked for a certificate. In the case on hand, the certificate issued by the said doctor is not to any of the relatives of the deceased but the fact is the certificate had been issued to the opposite parties Insurance Company on the said doctor being approached. THErefore, the certificate issued by the doctor to the opposite parties Insurance Company to the effect that he was doctor, who had given treatment to him for heart ailment at some point of time cannot at all be expected to commend acceptance at our hands when especially the certificate did not even contain factual materials as to the date on which the treatment had been given to the deceased/assured. It appears that the native doctor had been in the habit of issuance of such certificates mainly for the sake of being asked for certificate in an obliging way to the parties like the Insurance Company for the reason best known to him. In this view of the matter, we are not prepared to place any reliance on the certificate so issued by the said doctor. As such, there is no material worth the name available on record to point out that the deceased assured had suppressed any vital factors relatable to his health and his having been addicted to alcoholic beverages while submitting the proposal with the opposite parties before ever he took the policy of insurance. In this view of the matter, the finding of the Forum below that there was deficiency in service on the part of the opposite parties cannot at all be stated to be not sustainable.

THE Forum below awarded interest @ 18% per annum on the policy amount of Rs. 75,000/- on and from 1.8.1994. THE complainant made a claim under Ex. A4 on 31.5.1994. Taking into consideration the date of the claim, the Forum below allowed a margin of two months for the claim so made to be settled and since the claim had not been settled within the reasonable period of two months from the date of making of the claim, it ordered payment of interest on 1.8.1994. We are nothing to say with regard to the date of award of interest. But we cannot sustain the order of the Forum below as respect the rate of interest at the rate of 18% per annum in view of the dictum of Supreme Court that the Insurance Company cannot at all be mulcted with liability for the payment of interest far and excess of 12%. THErefore, the rate of interest awarded by the Forum below as 18% is reduced to 12% on and from 1.8.1994 on the policy amount of Rs. 75,000/-. The Forum below in addition to the payment of interest on the policy amount also awarded compensation quantified in a sum of Rs. 5,000/-. Grant of interest and also payment of compensation for mental agony and anguish suffered by the complainant cannot at all be ordered and either one of them alone is permissible in law as per the dictum of superior Courts of Jurisidction. In this view of the matter, the compensation of Rs. 5,000/- as awarded by the Forum below for mental agony and anguish deserves to be deleted and we accordingly do so. The Forum below also awarded costs in a sum of Rs. 500/-, which we feel, is not unreasonable calling for interference, and therefore, we confirm such part of the award.

IN fine, except to the extent of modification of the award of the Forum below as made by us, the appeal shall stand dismissed in other respects. We, however, make no order as to costs on the facts and in the circumstances of the case. We shall, however, make it crystal clear that the award of the Forum below as modified by us is required to be complied with by the opposite parties within a month from the date of receipt of our order or otherwise the complainant would be at liberty to invoke provisions of Section 27 of the Consumer Protection Act, 1986 (for short, "the Act"). Appeal dismissed.