DAHIBEN vs Life Insurance Corporation of India

THE complainant is a widow coming from a lower mid the class Barot family. Her husband was insured vide Insurance Policy No. 830477657 after undergoing medical check up made by the medical practitioner of the LIC. THE medical practitioner has also signed the proposal form. THE complainant had paid the premiums and the receipts are annexed. That about an year after the policy, the husband of the complainant died on 21.3.88, who was in sound physical condition, at his residence. THE death certificate is also produced.

AFTER the death of her husband the complainant approached the Corporation and filed her claim in the prescribed form with the certificate of medical attendant Mr. Rajnikant G. Gajjar. The complainant has also filed a statement of Mr. Nitin kumar Vitthalbhai Gajjar, and Industrial Advisor and Tax Consultant because the deceased was serving in Shreeji Polycot, GIDC Estate, Vatva who was seen by the witness two days before and in the column of health he has written healthy, aged 36 yrs. and 9 months old. The deceased was engaged in plastic lamination business. It appears that the Insurance Company rejected the claim by their letter dated 28.7.88 on the ground that the deceased had withheld the correct information regarding his health at the time of effecting the insurance. In a questionnaire he had stated that his health was good, he had no pressure and he had not taken any treatment exceeding one week in last 5 years. The Insurance Company had stated that they are holding the proof that the answers were false. That the Insurance Company has alleged that the deceased was suffering from high blood pressure, headache, palpitation, giddiness etc. for which he had consulted a medical practitioner. However the company had not disclosed the name of the Medical Practitioner or any other particulars which can be dealt with by the complainant and answer the same. It will be seen that a disease of high blood pressure, headache, palpitation of heart, giddiness are the ailments which can be detected by any medical officer by simple use of blood pressure instrument. Generally, when medical practitioner checks the blood pressure it always registers high on account of fear and pressure. In the instant case it has not been disputed by the Insurance Company that the health of the deceased was checked by the medical officer of the Company who could have easily detected the high blood pressure, palpitation of heart if the insured was suffering from such high blood pressure and palpitation of heart. In reply to the complaint, one Mr. D.K. Dalai, Manager in the Division office of the opponent Corporation at Ahmedabad has filed an affidavit denying most of the averments made by the complainant. He has admitted that the policy dated 28.3.87 was given to the insured. In para 5 of the affidavit he has stated that the deceased was a patient of high blood pressure, headache, palpitation, giddiness etc. and he had taken treatment for the said diseases regularly from various medical experts prior to the date of the proposal and since the insured had failed to disclose these facts the Corporation was justified in repudiating the claim. He has disclosed for the first time in his reply of December, 90 the name of the medical practitioner - Mr. Upadhyay from whom the insured has taken treatment and thereafter the treatment of Dr. Bhansali from 19.8.87 to 13.12.87. In support of the contention the Corporation has also produced the case papers of Dr. Upadhyay right from 1985 till June 1987. That means that at the date when the proposal was signed the insured was under the treatment of Dr. Upadhyay and he had taken treatment for nearly two years. The subsequent certificate of Dr. Bhansali is not very important because he had started treatment from 19.8.87 i.e. after 5 months from the date of the proposal.

The parties prayed for adjournment from time to time with the intention to arrive at a compromise and that is why the matter has been delayed. The complainant has filed a rejoinder denying that her husband was suffering from high blood pressure, headache, palpitation and giddiness and she has specifically stated that her husband has never taken treatment for high blood pressure and palpitation from Dr. Upadhyay whose certificate was annexed by the Corporation in affidavit in reply. She had admitted that her husband fell ill in August 1987 and he had taken the treatment of Dr. Bhansali but he was not suffering from any disease as mentioned. The complainant had to file affidavits of two persons who have stated on affirmation that the deceased was not suffering from any disease but after the dissolution of the partnership he came into financial difficulties and started to take advice of Dr. Bhansali. The Insurance Company has filed an affidavit of Dr. Upadhyay who has been cross-examined by the complainant''s advocate. This cross-examination reveals startling facts. That Dr. Upadhyay has admitted that he was supposed to preserve the case papers. Sitaram was my patient. He has also kept the register of cases. He was examining 35/40 patients a day on an average. However he has produced the Xerox copy of the case papers. He has admitted that he is supposed to write the fees charged in the case papers and register also. Having said so, the doctor has admitted that: 1. he has not charged any fee from Sitaram for the reason that Sitaram was his friend. 2. he has not charged any fee from the Corporation for giving the certificate. 3. he had given the opinion without taking permission from the patient or his wife. 4. regarding production of register the doctor has stated that he does not want to produce the register as he has not entered the case. To the question to produce the case papers, the witness has produced the Xerox copy of the case papers. To the question as to where are the originals, the witness has answered that the originals have been lost. He admitted that at the time when he gave Xerox copy to LIC the case papers were with him. A question was asked ''did you realise at the time when you gave Xerox copy that the papers were important'', he answered that he realised. However he stated that he missed it because he did not mind that much seriousness. He stated that when the deceased came before him he was 25/27 years old. He has admitted that this was not a common disease for a person aged 25 to 27 years. He also admitted that he has not mentioned about the case papers when he gave the certificate. He stated that he has not seen the policy nor he knew the policy number. When his attention was drawn to the certificate where the policy number was written, he stated that it was not in his hand writing. It might have been subsequently put on.

IT is very curious. So far the evidence of this witness is concerned, it is a very important evidence. The whole case hangs upon the evidence of this witness. We had the opportunity to examine this witness and see his demeanour in the witness box. We are convinced that the witness was not telling the truth. If we look to the case papers it appears that they are written mechanically. The man was not so rich enough to afford to go to a medical practitioner. There is no material to show as to how Sitaram who was a Barot and had no connection with the medical practitioner was a friend of the witness. The witness is not prepared to produce the case register because he has not entered the case in the register. The witness giyes a certificate to the Insurance Company in April 88, gives Xerox copy to the Insurance Company of the case papers and still he is not able to produce the original papers. He has clearly admitted that he realised that the case papers were important but he has missed it. How they are missed is not explained. There is a total denial by the complainant regarding the services of Dr. Upadhyay and we have no reason not to believe the complainant. We are not impressed by the evidence of the doctor and we are clearly of the opinion that the Xerox copy of the papers produced by the doctor without producing the original creates great suspicion. He has charged neither the patient nor the Insurance Company, which we are not prepared to believe. Why should a doctor disclose the material information to the Insurance Company which might damage his claim if he is a friend of the deceased and without any financial gain. How the Insurance Company came to know that Dr. Upadhyay was the doctor of the deceased is also not explained. The Insurance Company having found the evidence of Dr. Upadhyay suspicious, could have called Dr. Bhansali as a witness. But they did not. Again, the Insurance Company has not called the doctor who has examined the deceased on the date of proposal whose evidence was most material evidence. The disease which is alleged by the Insurance Company is such which one cannot hide when the deceased had gone to the particular agent who has also not been examined by the Insurance Company. The agent must be knowing the deceased who could have thrown light over the case. Not only this but the doctor of the Insurance Company had certified that the deceased was insurable. All these create great doubt and suspicion regarding the genuineness of the case put up by the Insurance Company. Now it has been held by the Hon''ble Supreme Court in the case of Life Insurance Corporation of India v. Smt. G.M. Channabasamma reported in AIR 1991 SC 392 that in a case where the complainant proves that there was a valid insurance and the insured has expired during the pendency of the valid insurance the burden to prove that there was any misstatement in the proposal form is upon the Insurance Company. Not only the Insurance Company has the burden to prove that the deceased was suffering from diseases but the Insurance Company shall have to prove that the deceased knew that he was suffering from disease and that he has made false statement to the question raised by the Insurance Company in the proposal form. Though the Insurance Company has not examined Dr. Bhansali for the reasons best known to it who could have cleared many doubts his evidence would not be very relevant in the sense that he has given a certificate of treatment about 5 months subsequent to the date of proposal as a man can get blood pressure by any shock and in this case the young man has expired due to heart attack and without any time to take the treatment in a hospital. Considering the age of the deceased and the suspicious evidence of Dr. Upadhyay and the evidence produced by the complainant''s neighbours, we are of the opinion that the Insurance Company has failed to prove that the statements made in the proposal form were incorrect, that the deceased knew that he was suffering from such diseases which he was required to tell to the Insurance Company. This is a policy in which the deceased was examined by the Corporation''s doctor and the alleged disease is of such a nature which can be detected by a practitioner with the use of blood pressure instrument and we know that in all cases when a doctor examines the patient for the purpose of insurance he examines the blood pressure of the person to be insured. If there is blood pressure or palpitation of heart it would have been easily detected by the doctor. We are, therefore, inclined to believe that the Corporation has not examined this doctor whose evidence might damage the theory put forward by the Corporation. We are, therefore, to draw adverse inference on that account also. The facts of the case before Supreme Court being relevant, are reproduced as under: "the last policy for Rs. 25,000/- was taken on 23.8.61 and the insured died on 14.10.61 in a hospital of T.B. patients. According to the case of the Corporation the deceased was suffering from acute diabetes and disease of the lungs for which he was fully aware at the time of taking out the policies in question and fraudulently denied the same in the proposal forms. It was not disputed that the insured died only about two months after taking of the last policy and, therefore, the advocate of the Corporation argued that it cannot be believed that he did not know about his illness. Having regard to the nature of disease it must be assumed that the insured was fraudulently suppressing the relevant facts. The Counsel for the respondent i.e. the claimant had contended that it was true that the husband of the claimant died of T.B. but he or any member of the family had no knowledge of his illness at the time of taking out the policies. He was keeping good health and actively taking part in his business and the discovery of disease which accounted for his early demise was made very late. On appeal the High Court on consideration of the evidence led by the parties held that "the defendant (Corporation) had failed to prove that the insured was suffering from diabetes or T.B. at the time of filing of the proposal for the insurance policies or he had given any false answer in his statement or suppressed any material facts which he was under the duty to disclose and, therefore, the High Court reversed the finding of the trial Court which had found that the assured had committed fraud on the defendant Corporation in taking out the policies. This finding was challenged before the Hon''ble Supreme Court. After going through the evidence the Supreme Court has observed that "the burden of proving that the insured had made false representation and suppressed material facts is undoubtedly on the Corporation." After considering the evidence of both the parties the Supreme Court has again observed that "as against this, the evidence of the Corporation''s doctors who had certified the good health of the insured at the lime of taking out the insurance policies and who have been examined as defence witnesses disproves the case of illness. It has not been suggested that these doctors were won over by the insured or were negligent in performing their duty. They had submitted confidential reports about the health of the insured and were of the opinion that he was in good health. We, therefore, agree with the High Court that the defendant Corporation has failed to discharged the burden of proving the defence story about the serious illness of the insured at the time of taking out insurance policies and knowingly suppressed the material information."

After making the above observations, the Supreme Court dismissed the appeal of the LIC.

IN the instant case also the burden is on the Corporation to prove that the insured has made a false statement or suppressed material facts as stated above. IN the instant case also the medical examination has been made and the Corporation doctor has certified good health. The LIC has not examined this doctor who was the most important witness in-as-much as he had examined the insured and would have detected the palpitation of heart, high blood pressure and other illness if there was any. It is also not established that the insured knew that he was suffering from any disease and that he has deliberately given false answers. IN our country people are not frequently visiting doctors and checking their health and even if they are suffering from diseases they are not aware of the same because they cannot afford such investigation and consultation of the doctors. It is, therefore, possible that the insured might not be knowing that he was suffering from any disease. In view of the aforesaid facts and circumstances we are of the opinion that the LIC has failed to discharge the burden of proving that the deceased has made false representation and suppressed material facts. In these circumstances we shall have to accept the claim of the complainant by passing a suitable order. We also find that the complainant is entitled to interest as well as cost. ORDER The Life Insurance Corporation of India is directed to pay the policy amount of Rs. 50,000/- with running interest @ 13% p.a. from the date of repudiation till the payment and shall pay cost to the complainant which is quantified at Rs. 500/-. The LIC shall make the payment within 4 weeks from the date of receipt of this order. Complaint allowed with costs.