Judgment:
Oral Order : (Per Smt. M.Shreesha, Honble Member )
Aggrieved by the order of the District Forum in C.D.No.102/2005 on the file of Dist.Forum, Karimnagar, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant is the mother of one Mr.L.Roopsingh who has discharged his duties as School Attender and his Department made him take two LIC policies for Rs.50,000/- each and besides these two policies the complainant had himself taken two policies for Rs.1 lakh each on 28.9.2002 . Before issuance of the second policies the life assured was transferred on 19.6.2002 to ZPSS, Jagasagar of Medpally Mandal from Zilla Parishad School, Karimnagar. As the complainants son was not desirous to join at Jaggasagar, he obtained sick leave on the ground that he was suffering from jaundice. On 31.10.2002 after his long sick leave his transfer orders were cancelled and he was posted at ZPPSS, Venkapalli. While he was working as school attender in the said school he came to his native place during Christmas holidays and on 24.12.2002 at 6 a.m. he died due to snake bite. The complainant could not shift her son to Husnabad Town which is far away and in the meantime he died as herbal medicine did not work on him. After the death of Roopsingh, the complainant came to know that her son had taken two policies. Opposite parties 1 and 2 by ignoring the medical certificates issued by the LIC doctors and relying on the certificates of sick leave, rejected the claim of the complainant on the ground that the life assured was not keeping good health and he was on leave on medical grounds from 11.7.2002 to 7.11.2002. Hence the complaint seeking direction to the opposite parties to pay claim amount of Rs.2 lakhs along with interest @ 18% p.a from 24.12.2002 till the actual payment and to pay damages of Rs.50,000/- and to pay costs.
Opposite parties filed counter stating that two policies were issued to the life assured one is for 25 years term under Jeevan Mitra Triple Cover Endowment Plan on 28.1.2001 for a sum of Rs.1 lakh and another 2nd policy is for 25 years term under Jeevan Mitra Double Cover Endowment Plan on 28.9.2002 for an assured sum of Rs.1 lakh each. The life assured died on 24.12.2002 within 2 months 26 days from the date of issuance of the policies. Opposite parties contend that the complainant while stating that her son died of snake bite on 24.12.2002 did not file any documents i.e. FIR, Police or Panchanama Report or Postmortem Report as proof of death due to snake bite. Opposite parties contend that the life assured was suffering from AIDS and also jaundice prior to submission of proposal and was on leave from 11.7.2002 to 7.11.2002 and took treatment from Dr.D.Surya Prakash for jaundice. The life assured intentionally suppressed vital information in the proposal dt.29.9.2002 and 30.9.2002. The life assured was suffering from jaundice and AIDS and died within 3 months from the date of taking of the polices and the life assured was having two more policies and this opposite party Corporation has considered the death claims on the policies and admitted the liability and the death claim amounts were paid to the complainant as per rules on 21.1.2004. Opp.parties submit that there is no deficiency in service on their behalf and seek dismissal of the complaint with costs.
District Forum based on the evidence adduced i.e. Exs.A1 to A14, partly allowed the complaint directing the opp.parties 1 to 3 to pay Rs.4,400/- with interest @ 9% p.a. from the date of the complaint till payment and Rs.1000/- towards costs within one month from the date of receipt of the order.
Aggrieved by the said order, the complainant preferred this appeal
The facts not in dispute are that the complainant took two policies from LIC for Rs.50,000/- each and thereafter took two more policies for Rs.1 lakh each. The first policy is for 25 years term under Jeevan Mitra Triple Cover Endowment Plan for an assured sum of Rs.1 lakh taken on 28.1.2001 and the other policy is for 25 years term under Jeevan Mitra Double Cover Endowment Plan for an assured sum of Rs.1 lakh , the date of commencement being 28.9.2002. It is also not in dispute that the life assured died on 24.12.2002 i.e. 2 months 26 days from the date of issuance of the policies. It is the case of the complainant that her son i.e. life assured died due to snake bite on 24.12.2002 and that he had taken earlier leave from his employer only because he was transferred to ZPSS, Jaggasagar of Metpally Mandal from Zilla Parishad, Karimnagar and since her son was not willing to join at Jaggasagar he took sick leave on the ground that he was suffering from jaundice. As a matter of fact the complainants son was perfectly sound in his health and never had any disease. Meanwhile on 31.10.2002 after his long sick leave his earlier transfer orders were cancelled and he was posted in ZPSS., Venkapalli and while he was working there, during Christmas Holidays he came to spend with his mother and died on 24.12.2002 due to snake bite and it is only because the nearby town Husnabad was far away the complainant could not shift her son immediately and that he died since the herbal medicine did not function on him. It is the case of the opp.parties that the life assured suppressed that he was suffering from Jaundice and AIDS and has taken medical leave from 11.7.2002 to 7.11.2002 and took treatment from Dr.D.Surya Prakash for jaundice. We observe from the record that the first two policies taken by the life assured have been settled by the Insurance Company and it is only the last two policies that the opposite parties repudiated on the ground that the complainants son suppressed material facts with respect to his health i.e. they contend that he was suffering from Jaundice and AIDS prior to issuance of the proposals . It is pertinent to note that the opp.parties while settling the first two policies have contended that the life assured had suppressed jaundice. Respondents have filed written arguments contending that Ex.A4 copy of the Death Certificate issued by MRO, Husnabad and Ex.A14 which is the Xerox copy of the certificate issued by Surpanch, Gram Panchayat, Akkannapet shows that the deceased died on 24.12.2002 but does not explain the cause of death. Opposite parties relied on Ex.B5 which has been signed by Dr.D.Surya Prakash who is on the panel of LIC. We also observe from the record that affidavit of Dr. Surya Prakash has not been filed. While it is not in dispute that the complainants son availed leave on medical grounds from 11.7.2002 to 7.11.2002 and reasoning given for that, the life assured was transferred and since he did not want to attend the duties at ZPSS, Jaggasagar which is far away interior village he submitted medical certificate in support of his appeal but he had no illness during the period from 11.7.2002 to 7.11.2002. It is also pertinent to note that the complainant had also filed transfer orders in Ex.A5 dt.29.6.2002 and the period of medical leave is subsequent to that i.e. from 11.7.2002 to 7.11.2002. It is also complainants case that her son got transferred to Venkapalli on 31.10.2002 and joined duty on 8.11.2002 and only to get the salary during his absence he produced the medical certificate. Opposite parties except Ex.B5 has not filed any other document to substantiate their case that the life assured suffered from jaundice and AIDS. We rely on the decision of this Commission reported in 1999 (2) ALD (Cons.) 93 in BRANCH MANAGER, LIC. OF INDIA, CUDDAPAH v. M.PARVATHI @ RADHA AND OTHERS wherein it is held as follows:
âmere production of doctor certificates enclosed with the application for leave on medical grounds without examining the doctors does not prove that the insured was in fact suffering from the disease and that they have been suppressed by the insured. Heavy burden lies on the insurance company to prove that the insured has indeed suppressed these factsâ
Relying on the aforementioned judgement we are of the view that merely because the life assured has taken medical leave it cannot be stated that he was suffering from the disease unless and until it is substantiated by doctor certificate and affidavit followed by the case treatment record. In the instant case the opposite parties did not file the affidavit of the Doctor who stated that the complainants son suffered Jaundice or AIDS. Moreover the opposite parties have also failed to state what exactly the cause of the death was by means of any documentary evidence. They themselves have settled earlier two claims on the ground that the life assured died of snake bite. In the absence of any documentary evidence to state that the complainant died of AIDS or Jaundice which he has alleged to have suppressed, the opposite parties repudiation is unjustified. It is also an established fact that for a death like snake bite documentation like FIR or Postmortem Report are not mandatory to be supplied to the insurance company since the death by snake bite per se is not a suspicious death.
We rely on the decision of National Commission reported in II (2009) CPJ 149 (NC) Gangotri Devi and Others vs. National INSURANCE COMPANY LTD. AND ANOTHER which reinforces that FIR and Post Mortem Report are not essential for a death which is not suspicious.
However the Insurance Company failed to establish that the life assured suppressed facts about his health in a willful and wanton way. We rely on the decision of the Apex Court in LIC OF INDIA v. SMT. ASHA GOEL, I (2001) SLT 89= (2001) 2 SCC 160, wherein it is held as follows :
âSection 45 of the Insurance Act is restrictive in nature and depends upon the conditions. It lays down that the suppressed material must be of such material which ought to have been disclosed and that the insured might have played fraud. The burden of proving false representation and suppression of material facts lies on the insurance company.
From the aforesaid judgement it is clear that unless and until the Insurance Company is able to prove beyond doubt, under Section 45 of the Insurance Act, that the life assured suppressed some information which is material for suppression it cannot repudiate the policy. In the instant case, the opposite parties have failed to establish that the life assured had suppressed information with respect to his health willfully and fraudulently prior to issuance of the two policies. Hence we are of the considered view that there is deficiency in service on behalf of the opposite parties in not settling the claim.
In the result we modify the order of the District Forum directing the opposite parties to pay Rs.2 lakhs (with respect to policy number 683501880 for a sum of Rs.1 lakh and policy no. 683741558 for another sum of Rs.1 lakh) with interest at 7.5 % p.a. from the date of the repudiation till the date of payment together with costs of Rs.3000/-. Time for compliance four weeks.