Life Insurance Corporation of India vs HARPREET KAUR

THIS appeal is directed against the order dated 7.3.2003 passed by the Divisional Forum by virtue of which DF allowed the complaint of the respondent/complainant and directed the appellant/O.P. to pay Rs. 1 lakh insurance amount to the respondent along with 9 per cent interest 3 months after the date of death and Rs. 1,000/- was also allowed as litigation charges.

CASE amenates from the fact that complainant''s husband had secured Life Insurance Policy for a period of 20 years for a sum of Rs. 1 lakh commencing from 28.12.1998 and after paying the premium of Rs. 1,419 respondent died due to cardiac arrest during the subsistence of the above policy. Complainant''s widow raised the claim but was denied by the appellant on the ground that the deceased had suppressed the material fact of previous existing heart ailment which is clear breach of insurance policy and thus it disentitled the nominee i.e., complainant to receive insured sum. The claim was resisted on the same ground that the deceased husband of the complainant had suppressed the fact to the appellant at the time of filling the proposal form for insurance regarding his previous ailment of ''Chest Pain and Breathlessness of exertion''. Evidence was recorded. DF has considered the whole evidence in the case and has come to the conclusion that the appellant has failed to prove the previous disease of the deceased so the complaint was followed.

Heard learned Counsel for the parties. Learned Counsel for the appellant has emphatically argued that the impugned order is erroneous in law and is misconceived. According to him DF has not taken note of the things. The deceased had history of previous heart ailment which he suppressed from the appellant and in reply to question in the insurance form whether the insured had any disease of heart ailment, kidney or any other disease, the insured replied ''No''. It is on this ground he wants us to set aside the impugned order of the DF. We have considered the rival arguments. Before proceeding further we may express our views that it is incumbent upon the Insurance Company to prove the previous disease. Secondly, it has to be proved that there is direct nexus between the previous disease which he has suppressed and the cause of death and 3rdly the ONUS lies on the Insurance Company to prove that the insured had full knowledge about the previous disease and he deliberately knowing the pros and cons concealed this fact from the Insurance Company at the time of filling of the form. Merely tossing the claim files on one pretext or the other is dereliction of duty and deficiency in service. One such claim is raised burden is heavily on the Insurance Company to prove that the patient had previous disease which he concealed and the disease was a fatal disease which caused his death. In Condogianis v. Guardian Assurance Co. Ltd., AIR 1921 PC 195 Lord Shaw observed: "...If in point of fact the answer is untrue, the warranty still holds, notwithstanding that the untruth might have arisen inadvertently and without any kind of fraud. Secondly, the materiality of the untruth is not in issue the parties having settled for themselves - by making the fact the basis of the contract, and giving a warranty - that as between them their agreement on that subject precluded all inquiry into the issue of materiality..." (p. 196)

We have not to take word No which had been written by the deceased in the forms as a deliberate attempt of concealing the disease especially when there is no proof of such disease. O.P. should lead evidence to the fact that the deceased had deliberately concealed the previous ailment and he was fully aware of that ailment and its consequences.

NATIONAL Commission in New India Assurance Co. Ltd. v. P.P. Khanna, II (1997) CPJ 1 (NC)=1997 (2) CPR 21 (NC), held as follows : "The onus probandi, in cases of fraudulent suppression of material facts rests heavily on party alleging fraud namely the insurer. The insurer cannot avoid consequences of insurance contract by simply showing inaccuracy or falsity of statement. Burden is case on the insurer to show that the statement was on a material matter or facts have been suppressed which it was material for the policy holder to disclose. It is further to be proved that the statement was fraudulently made by policy-holder with the knowledge of the falsity of statement or that the suppression was of material facts which had not been disclosed. The Courts will not be satisfied with proof which falls short of showing that intentional misrepresentation was made with the knowledge of perpetrating fraud."

Applying this law in the present case we see that there is no evidence of previous disease of the deceased. Merely disclosing 2 years before his death in the hospital about his Chest Pain and Breathlessness of exertion will not lead us to conclusion that the deceased had heart disease and/or deceased was knowing fully well that he was ailing from heart disease. Chest pain as has been put rightly by the DF can be cause of so many diseases even gastro can also have a cause for the chest pain, in this case, it is a fact that the deceased was hospitalized for one night on 8th of February, 1999 and he was discharged the second day 9th February, 1999. Appellant has failed to prove that the heart disease had been diagnosed by any Doctor in any hospital. Deceased has only revealed to the Doctor that he had chest pain and breathlessness which necessarily does not mean that he was ailing from heart disease, and cannot be so. Had there been a heart disease he would not have been discharged the other day. Heart disease cannot be cured within one night. There is not a whisper in the record to show that the heart disease had been diagnosed by any Doctor. Secondly, no evidence has been produced by the Insurance Company that he had a heart disease.

LEARNED Counsel for the Insurance Company has relied on the authority of National Commission in the case titled LIC of India v. Smt. Krishna Devi, Revision Petition No. 430 of 2001. It is the fact in this case the insured had disclosed "chest pain breathlessness heart problem". It was proved and it was admitted by the deceased that he had Chest Pain due to heart disease and the insured in this case died only within 1 month from the date of insurance contract. Here in the case in hand Chest Pain is not related to the heart ailment but it is related to exertion. There is a hell of difference between the two cases so National Commission Authority (supra) cannot be helpful to the Insurance Company. Learned Counsel for the respondent has very correctly argued that before the Life Insurance Policy is accepted and issued Insurance Company get the insured examined by their empanelled Doctors. Here in this case also according to the complainant before issuing the policy the appellant got the deceased medically examined by their Doctors but the appellant has remained silent about this and has not produced any evidence so the contention of learned Counsel for the respondent that the appellant was got examined through empanelled Doctors by the appellant and was found quite healthy remains unrebutted. We have examined the impugned order and DF has addressed itself to every aspect of the case and has passed the order in accordance with law. We see no room for our interference. The appeal is accordingly dismissed. Appeal dismissed.