BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA vs Asha Singh

THIS is an appeal against the judgment and order (undated) the certified copy of which has been delivered to the appellant on 18.1.2001 passed by District Consumer Forum, Azamgarh in Complaint Case No. 110/1993.

THE facts of the case stated in brief are that the complainant''s husband was a Doctor and he took a Life Insurance Policy of Rs. 50,000/- for 20 years. THE complainant was made a nominee in the policy. THE premium was paid in time but on account of the fault of the agent one premium could not be deposited in the year 1988. When this matter was brought to the knowledge of the complainant''s husband, the amount of the premium along with interest and late payment was deposited. Suddenly the complainant''s husband developed severe pain in the carbuncle on account of which he was admitted to the District Hospital, Azamgarh but he died. The complainant submitted a claim form along with necessary papers but the same has been repudiated by letter dated 4.2.1992 on the ground that the material fact has been suppressed. The complainant''s husband was not suffering from any heart disease and had never suffered any heart disease. The complainant has, therefore, claimed the policy amount along with interest at the rate of 18% per annum.

The opposite party in its written version has alleged that the material fact was suppressed, hence the claim has been repudiated.

THE learned District Forum, after considering the case of the parties, came to the conclusion that there is a deficiency in service on the part of the opposite party, hence it decreed the claim of the complainant for Rs. 50,000/- along with interest at the rate of 18% per annum with effect from 3.5.1993 till the date of payment along with cost of Rs. 2,000/-. Aggrieved against this order, the opposite party, Life Insurance Corporation of India has come in appeal and has challenged the correctnes of the order passed by learned District Consumer Forum.

WE have heard the learned Counsel for the appellant at the admission stage without issuing notice to the opposite party. The learned Counsel for the appellant has argued that the complainant''s husband was suffering from heart disease and this was not disclosed by the complainant''s husband at the time when the policy was revived on 26.11.1989. A perusal of the file will go to show that the appellant had relied on certain documents. It is an admitted fact that the proposal was filled up in the year 1986 and the policy was revived in the year 1989 after a gap of three years. The death took place on 16.7.1990 after a period of 1 years from the date of revival. A perusal of the document on record will go to show that in the certificate of hospital treatment which is Annexure-3, it has been mentioned that there is a marked swelling on right thigh with high fever, breathlessness and the patient was feeling unconscious. The date of admission was 7.8.1989. The disease is mentioned as shock with abscess on right thigh. There is no document to show that there was any heart disease and the insured died on account of the heart disease. The learned Counsel has argued that there was breathlessness which was suppressed. Breathlessness is not a disease by itself which can be said to be suppression of any material fact. Breathlessness can be due to many reasons and it cannot be said that the breathlessness is only due to heart trouble. The Doctor has written in the medical report that there was a carbuncle on the right thigh. Had there been any heart disease then it would have been given in the medical report. Therefore, we find that there was no heart disease and as such there is no question of suppression of this disease. It was also argued that the E.C.G. which was done have not been produced. The complainant has stated that the E.C.G. was done by the Doctor for his own satisfaction. There is no affidavit of the Doctor who did the E.C.G. that there was some heart ailment to the insured.

NOW we have to see whether there was any suppression of material fact by the complainant''s husband and whether it has been proved that any material fact has been suppressed by the insured.

IN the case of Mithoolal Nayak v. Life INsurance Corporation of INdia, AIR 1962 Supreme Court 814, the Hon''ble Supreme Court had an occasion to consider the scope of second part of Section 45 of the INsurance Act. The Hon''ble Supreme Court has held that the three conditions for the application of the second part of Section 45 are- (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy-holder; and (c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

In the present case, we have to see whether these three conditions were fulfilled or not. The first condition is that the statement must be on a material matter. In the present case, the complainant''s husband was not suffering from any heart disease. He was only suffering from breathlessness. The breathlessness can be due to many factors and not on account of heart trouble alone. The burden to prove that there was heart ailment to the complainant''s husband must be proved by the Life Insurance Corporation of India because the burden lies on the L.I.C. to do so. If any E.C.G. was done, there must be a report of the same but no report has been filed. Thus, we find that the deceased was not suffering from any heart disease otherwise that fact would have been brought on record. If the deceased had been suffering from heart disease and he did not disclose the same at the time of revival of the policy then there would have been suppression of fact which was material to disclose. There is no evidence on record that there was any fraudulent suppression of the fact. It has already come in the above part of the judgment that there was no suppression of material fact. The third condition which is necessary is that the policy holder or the person who is going to be insured must know that the fact which has been alleged to have been suppressed must be known to him and he did not deliberately disclose that fact. If a disease exists in the body but its existence is not known to the insured at the time of filing of the proposal form then it cannot be said that the insured is guilty of suppression of material fact. In the present case, there is no evidence on record to show that at the time when the policy was taken or when the policy was revived the insured knew that his breathlessness is due to any other disease or must be due to heart trouble. Thus, we find that the Insurance Company has utterly failed to prove that the deceased was suffering from heart disease and he suppressed this fact from the Insurance Company. Thus, the appeal is, therefore, liable to be dismissed. ORDER The appeal is dismissed. The judgment and order of the learned District Forum are confirmed. Let copy of this order be made available to the parties as per rules. Appeal dismissed.