Gurdev Singh, President:
1. The appellants/OPs No.1 and 2, Life Insurance Corporation of India, has preferred the present appeal against the order dated 17.1.2011 passed by the District Consumer Disputes Redressal Forum, Muktsar (in short âDistrict Forumâ), vide which the complaint filed by the respondent/complainant, Jaswinder Kaur, was accepted and the OPs No.1 and 2 were directed to pay Rs.1,00,000/- along with interest at the rate of 7.1/2% per annum from 26.7.2010 till the date of actual realization, Rs.10,000/- as compensation and costs to the complainant.
2. Dayal Chand, deceased, was the husband of the complainant who obtained life insurance policy No.131958585 from the OPs on 28.1.2004 after fulfilling the necessary formalities and he kept on paying the premiums regularly. He died on 7.4.2009 and the complainant laid her claim on the basis of the insurance policy on the ground that she was the legal heir of the deceased. The complainant averred in her complaint that at the time of obtaining the policy the deceased was medically checked by the officer of the OPs and was found physically fit in all respects. After her repeated visits to the office of the OPs for receiving the claim, she was informed that the insurance claim has been repudiated on the ground that the deceased was having pre-existing disease. The deceased was physically and mentally fit at the time he obtained the policy and the OPs illegally, mala fidely and in order to grab the amount of her claim have declined that claim without any sufficient reason. This amounts to deficiency in service on their part. She prayed that the OPs be directed to pay the insurance claim along with interest at the rate of 18% per annum and to also pay compensation for mental tension, harassment and agony and also the litigation expenses.
3. OPs No.1 and 2 filed a joint written reply in which they contended that it is fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and that good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose all the facts at the time of obtaining the policy. The deceased made a wrong declaration regarding his age. At the time of submitting the proposal, when he was insured on 28.1.2004, he under-stated his age. He disclosed his date of birth as 16.11.1973 and the age as 30 years. However, as per the voters list for the year 2009, he is 53 years old and as per the ration card issued on 3.11.2007 his age is 48 years. If he had disclosed that age, he would not have been given insurance for Rs.1,00,000/-. He intentionally and deliberately made a false statement and suppressed the material facts. Similarly, he made a wrong declaration regarding his health on 10.11.2008 at the time of the revival of the policy though he was required to disclose the actual facts regarding his health. He deliberately made a false statement for getting the policy revived and concealed the fact that he was suffering from paralytic stroke for the last two years. After proper investigation by Gurinderjit Singh, A.B.M. (S), Malout regarding the condition of the health, the competent authority repudiated the claim of the complainant after applying judicious mind and she was informed accordingly vide registered letter dated 26.7.2010. During that investigation, the investigating officer recorded the statements of Dr. Chaman Lal, R.M.P. and Tarsem Lal resident of the village of the deceased and they categorically stated that the deceased was paralytic for the last two years. There is no such deficiency in service on their part. The complainant has no cause of action to file the complaint.
4. In the complaint Inderjit Singh was impleaded, being the agent of the OPs No.1 and 2. He filed his independent reply in which he denied the contentions of the complainant and pleaded that the policy was never issued through him. He also pleaded that the liability to pay compensation, if any, is of the other opposite parties and he has been falsely impleaded as a party for which the complainant is liable to be penalized under Section 25 of the Consumer Protection Act, 1986.
5. After going through the evidence produced by the parties and hearing learned counsel on their behalf, the District Forum allowed the complaint against OPs No.1 and 2 while dismissing the same against OP No.3, vide aforesaid order.
6. We have heard learned counsel for OPs No.1 and 2 and have gone through the records of the case.
7. It has been submitted by the counsel for the OPs No.1 and 2 that the claim of the complainant was repudiated on two grounds:
(i) the deceased concealed the fact at the time of revival of the policy that he was suffering from paralytic stroke;
(ii) the deceased concealed his actual age at the time of filling of the proposal form. Cogent and convincing evidence was produced by the OPs on both those two aspects. That evidence was consisted of the voters list, ration card, report of the investigating officer and the statements of the witnesses recorded by the investigator. From that evidence, it stands proved that the deceased was suffering from paralysis two years before the revival of the insurance policy in the year 2008 and he made a wrong declaration at the time of revival of the policy that he was not suffering from any such disease. In the proposal form submitted by him at the time of obtaining the policy, he declared his age to be 30 years and submitted a declaration form also to that effect. As per the voters list of 2009, he was 53 years old and as per the ration card obtained by him in the year 2008 he was 48 years old. Thus, in the year 2004 when he filled up the proposal form he was not less than 44 years old but declared his age as 30 years. He betrayed the good faith which was the basis of the insurance policy and the claim of the complainant under that insurance policy was duly repudiated. The District Forum committed an illegality while not relying upon this evidence while recording findings in favour of the complainant and against the OPs. He placed reliance on the judgment of Honble National Consumer Disputes Redressal Commission rendered in Revision Petition No.4048 of 2009 (Life Insurance Corporation of India and others v. Smt. Hira Devi) decided on 9.4.2010 and prayed that the appeal be accepted and the complaint be dismissed.
8. First coming to the aspect of giving of wrong age at the time of submission of the proposal form. The proposal form is Ex.OP-2, in which the age of the deceased was mentioned as 30 years and the nature in proof thereof was the self-declaration, which is Ex.OP-3. It is also mentioned in that very declaration form that birth proof was not available. The OPs have relied upon the voters list for the year 2009 Ex.OP-13 in which the deceased is recorded to be 53 years old and the ration card Ex.OP-14 which was issued on 3.11.2008 and the age of the deceased is mentioned therein as 48 years.
9. The District Forum did not take into consideration these documents for determining the age of the deceased in view of the judgments mentioned in the order and which were relied upon by it. The first judgment so relied upon is reported in 1997(1)CPC 592 (Life Insurance Corporation of India v. Ram Payari). In that case the Insurance Company pleaded that in the voters list the age of the deceased was recorded as 68 years whereas at the time of taking of the insurance policy he declared his age to be 45 years. It was found that at the time of preparation of the voters list the election staff never insisted upon the production of âproof regarding ageâ and whatever was declared by the voter, the officials of the Election Department recorded the same. It was held by the State Consumer Disputes Redressal Commission, Haryana therein that voters list alone could not be taken as an authenticated document to falsify the statement made by the insured with regard to his age. The second judgment is reported in 1995(2)CPC 683 (Life Insurance Corporation of India v. Smt. Mooli Devi). In that case also the Insurance Company relied upon the electoral roll entry to show that the age was understated by the insured at the time of obtaining the policy. The District Forum held that the age in the electoral roll did not reflect the true age of the person. That finding of the District Forum was upheld by the State Consumer Disputes Redressal Commission, Rajasthan. The third judgment is reported in 2000(1) CPC 28 (Taj Kaur and another v. Senior Divisional Manager, Life Insurance Corporation of India and another). In that case, the insured was an illiterate person and the age mentioned in the proposal form was certified to be correct by the Divisional Officer of the Insurance Company. It was held by this Commission that the determination of age on the basis of ration card or voters list cannot be conclusive as only purpose of mentioning the age in those documents is to show that the person concerned was not minor at the relevant time. That may be so, but the fact remains that in the present case, no evidence has been produced by the complainant for rebutting the evidence of the OPs that the deceased understated his age to be 30 years. The complainant being the wife of the deceased was the best person to make a statement regarding his age. Her affidavit is proved on the record as Ex. CW-1 but that affidavit is silent regarding age of the deceased. She did not state therein that a correct declaration was made by the deceased at the time of obtaining the insurance policy. It is also to be noted that the complainant herself is relying upon the ration card as it was proved by her as Ex.CW-6. The Ops got produced the form which was filled up by the deceased at the time of obtaining the ration card. That form has been proved as Ex.OP-19. The deceased also submitted his affidavit Ex.OP-20 in respect of the disclosures made in that application. In that application, which was submitted to the concerned Department on 3.11.2008, he stated his own age to be 48 years. In this appeal itself, the OPs filed certificate dated 23.2.2011 issued by the Headmaster, Government Primary School, Rakharian, District Muktsar. As per that certificate, the deceased was admitted in the school vide entry at serial No.697 and his date of birth was recorded as 4.1.1963. From all this evidence, it can easily be concluded that at the time of filling up of the proposal form on 13.1.2004 the deceased was more than 43 years old. He made a wrong declaration that he was 30 years old. In Hira Devis case (supra), it was held by the Honble National Consumer Disputes Redressal Commission that it is settled position of law that insurance is a contract based on utmost good faith. It requires no emphasis that when any information on a specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information. It is expected of the contracting parties on either sides to give truthful account of details in the contract.
10. Therefore, on account of making a false declaration in the proposal form the deceased committed breach of good faith and the OPs No.1 and 2 correctly repudiated the claim of the complainant.
11. We are not inclined to place reliance on the evidence produced by the OPs on the aspect that at the time of the revival of the insurance policy, the deceased was suffering from paralytic attack from the last two years and made a wrong declaration that he was not suffering from any disease. As per the disclosures made by the investigating officer in his report Ex.OP-9, the deceased remained admitted in the hospital of Dr. Nandan Puri, Kalianwali for his treatment. It is also mentioned therein that the record to that effect will be submitted later on. No such document was proved by the OPs for proving that the deceased remained admitted in that hospital. It is relying upon the statements of Chaman Lal, Ex. OP-10, Geja Singh Ex.OP-11 and Dr. Tarsem Singh Ex.OP-12, recorded by the investigating officer of the OPs. Those persons were not examined before the District Forum nor their affidavits were tendered in evidence. In the absence of the records of the said hospital, which would have been the best evidence with the OPs, no reliance can be placed on these statements. It was correctly held by the District Forum that the OPs failed to prove that at the time of revival of the insurance policy, the deceased was suffering from paralytic attack from the last two years. Therefore, the insurance claim could not have been repudiated on that ground.
12. In view of our above discussion, this appeal is hereby accepted.
The order of the District Forum is set aside.
13. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be refunded by the registry to the appellants/OPs No.1 and 2 by way of a crossed cheque/demand draft after the expiry of 45 days.
14. The arguments in this case were heard on 4.2.2013 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.