Life Insurance Corporation of India vs LEELAWATI GUPTA

THIS is an appeal against the judgment and order dated 29.9.1997 passed by District Consumer Forum, Allahabad in Complaint Case No. 119 of 1996.

THE facts of the case stated in brief are that on the death of her husband, the complainant applied for claim for a sum of Rs. 2,00,000/- on the basis of insurance policy. On 28.5.1992 the insurance policy was taken by Sri Bholanath Gupta, husband of the complainant, for a sum of Rs. 2,00,000/-. THE premium was regularly paid. THE husband of the complainant had no such disease which might have caused death or on account of which the death may be caused. Suddenly on 15.2.1993 in the night the husband of the complainant got ill and utimately died on 16.3.1993 of which an intimation was sent to the Insurance Company. A claim form was got filled by the Insurance Company. Even after completing all the formalities the Insurance Company did not pay the amount and rejected the claim on 5.10.1994. THEreafter the complainant filed this complaint. The opposite party in its written statement has alleged that according to the report of the doctor, for the last three years complainant''s husband was suffering from bronchial asthma. This fact was suppressed at the time of taking the policy. On this ground the claim has been repudiated.

The District Consumer Forum, after considering the case of the parties, came to the conclusion that the claim has been wrongly repudiated and hence it decreed the claim of the complainant alongwith interest at the rate of 12% per annum and cost of Rs. 200/-.

AGGRIEVED against the order of the District Forum, Life Insurance Corporation of India has come in appeal and has challenged the correctness of the order passed by the Forum. We have heard learned Counsel for the appellant Mr. Arjun Bhargava and learned Counsel for the respondent Mr. S.K. Srivastava. We have perused the evidence on record.

ACCORDING to the learned Counsel for the appellant the proposal was given on 11.6.1992 which was accepted on 8.7.1992. It was back-dated to 25.6.1992. ACCORDING to the learned Counsel, the complainant was suffering from bronchial asthma and pulmonary tuberculosis. In the form it was stated that the husband of the complainant was suffering from breathlessness since last seven years. On the other hand the opposite party''s Counsel argued that the disease existed for the last three months only. Now we have to see the evidence of the parties in order to judge the facts of the case. This point has been specifically alleged by the appellant in the written statement in paras 29 and 33. A copy of the certificate of the doctor is on record. It is dated 15.5.1993. A perusal of it goes to show that the deceased was suffering from pulmonary tuberculosis. It has further been mentioned that on clinical examination it was found that the deceased was having this disease from the last three months. In column 8 the doctor has mentioned that he was a personal physician for the deceased and was treating him for the last seven years. The fact that the deceased was suffering from tuberculosis for the last three months - from eisonophelia and from bronchial asthma for the last three years or so is in reply to the question No. 9 which is about the period since when the doctor was treating the patient for this disease. In the proposal form dated 23rd June it has been mentioned in various columns that the deceased was not suffering from any of the disease mentioned in this proposal form in different columns. Thus from this fact it appears that the complainant was being treated for the last three months for eisonophelia or bronchial asthma.

IT has been argued by the learned Counsel for the appellant that eisonophelia and bronchial asthma if not treated properly will convert into tuberculosis. In this connection some medical literature is also filed. In the certificate of the doctor, it is mentioned that the cause of the death was pulmonary tuberculosis and the symptoms were cough and expectoration with fever for last three months before his death. Now we have to see whether there symptoms are also present in the bronchial asthma and eisonophelia. We may mention that eisonophelia causes breathlessness on account of increase in eisonophili. If this condition continues and eisonophelia is not treated the count of eisonophili goes on increasing causing severe breathlessness. If it is not treated properly then later on it converts to allergic asthma on account of which there can be continued breathlessness which can be controlled by medicine only. There is no evidence on record to show that before filling of the proposal the deceased was having this disease. There is no evidence on record of any doctor to show that the deceased was suffering from tuberculosis since last 7 years on account of which he later on died. In column 9 of the doctor certificate it is clearly mentioned that he treated the patient for eisonophelia and bronchial asthma for the last 3 years. The patient was under the treatment of the doctor from the last 7 years.

IN the medical literature filed by the learned Counsel for the appellant it is nowhere mentioned that bronchial asthma and eisonophelia will develop into pulmonary tuberculosis. IN the medical literature under the heading "Clinical Manifestation", primary tuberculosis infection is asymptomatic. It is further mentioned that the non-specific pneumonitis typically occurs in the lower or midlung zones. If tuberculosis persists for long period, then blood also comes out of the lungs. IN this case there is no evidence of any doctor and also the family physician of the deceased that he ever noticed coming out of blood from the lungs or any other symptoms which may cause suspicion about presence of tuberculosis. Thus from this literature it cannot be said that the bronchial asthma from which the deceased was suffering had caused death of the patient. The next question to be considered is whether the suppression of presence of bronchial asthma at the time of filling up of proposal form will vitiate the policy as the death has not taken place on account of bronchial asthma but death has taken place on the basis of tuberculosis. In the case of Smt. Alia Begum v. LIC of India, III (1997) CPJ 106 (NC), the National Commission had an occasion to deal with such a question. In that case the deceased was having intermittent fever and body aches which was suppressed and not disclosed in the proposal form. The deceased died of rheumatic heart disease. In this case in para 5 the National Commission has reproduced the relevant law on the point. For the sake of convenience it is quoted as under : "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 cast on the insurer to show that the statement was on a material matter of 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 the 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 or perpetrating fraud."

The National Commission has come to the following conclusion on the suppression of material facts. This is contained in para 7 of the judgment : "In order to discharge its onus, it was for the Insurance Company to place material on the record to show that the deceased suppressed facts which it was material to disclose. Whether a fact is material depends upon the circumstances of a particular case. The test to determine materiality is whether the fact has any bearing on the risk undertaken by the insurer. If the fact has any bearing on the risk it is a material fact, if not it is immaterial. From the history sheet dated 23.3.1990 it appears that the deceased was having fever with chills and rigors intermittently for about every 3 to 5 days for 3 months and there was body aches for the same period and joint pains and swelling in childhood. No evidence has been led by the Insurance Company to substantiate that the facts regarding intermittent fever and body aches were material particulars which the deceased was supposed to disclose and had bearing on the risk undertaken by the insurer. In our opinion these were trivial ailments and the same could not be construed as fraudulent suppression of material facts so as to repudiate the contract of insurance. Regarding joint pains and swelling, it must have been noticed by the Doctors who examined the deceased on behalf of the Insurance Company before finalisation of the insurance policy. Had it been a serious problem, it must have been mentioned in the report."

THUS after considering the facts of the case the National Commission came to the conclusion that intermittent fever with chills and rigors for every 3 to 5 days for three months with body aches was not a material fact bearing on the cause of death. Therefore the fact that the deceased was suffering from eisonophelia and breathlessness was not a material fact because the death has not taken place on account of this disease and also there is no evidence that this disease will develop into tuberculosis. Tuberculosis is an infectious disease which cannot be caused by allergic asthma. A patient of allergic asthma can be completely cured if he shifts to the place where those allergic conditions are not present. Learned Counsel for the appellant has placed certain cases before us. No reliance can be placed on these cases as they have been decided only on the basis of non-disclosure of material facts. Here we have already held that these facts were not material in the present case and its suppression hardly matters. Thus in our view on the facts of the case we come to the conclusion that there was no material suppression of facts by the deceased at the time of filling up of the proposal form. The appellant was not justified in repudiating the claim of the complainant, wife of the deceased, on this ground.

THUS the result is that the appeal is liable to be dismissed. Order The appeal is dismissed and the judgment and order of the learned District Forum are upheld. Let compliance of this order be made within a period of two months from the date of this order.

LET copy be made available to the parties as per rules. Appeal dismissed.