Judgment:
Dr. B.C. Gupta, Member
1. This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.08.2012, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short the State Commission) in FA No. A/11/442, œLife Insurance Corporation of India (hereinafter referred to as LIC) versus Smt. ArchnaDayanand Vakade?, vide which while dismissing the appeal, the order dated 31.03.2011, passed by the District Consumer Disputes Redressal Forum, Sholapur was upheld.
2. After preliminary hearing, a notice was sent to the respondent for appearance before this Commission. However, the respondent sent a written reply which is on record and requested that she being an illiterate lady and facing financial crisis and starvation, was unable to appear before this Commission. The petition was ordered to be admitted on 07.10.2013 and again notice was sent to the respondent for final hearing, but she did not appear despite service. The arguments advanced by the learned counsel for the petitioner have been heard and written reply submitted by the respondent has been taken into consideration.
3. The brief facts of the case are that the respondent ArchnaDayanand Vakade, aged 22 years, filed the consumer complaint in question, saying that her husband Dayanand obtained two insurance policies, i.e., 956920468 and 956922785 from OP/respondent LIC for sum assured `1 lakh and `2 lakh respectively. The proposal for the first policy was filed on 12.01.2007 and the same was issued on 08.02.2007. The proposal for taking second policy was filed on 25.02.2007 and the policy was issued on 2.03.2007. The husband of the complainant, thereafter, died a natural death on 28.02.2008. The complainant/respondent approached the LIC for payment of insured amount as per the two insurance policies. However, the respondents repudiated the claim on 03.07.2009, saying that the insured had withheld correct/material information regarding his health at the time of taking insurance and hence, violated the basic principle of utmost good-faith applicable to insurance policies. It has been stated in the letter of repudiation that the insured had given false answers to some of the questions in the proposal form as per the details below:-
œQ. No. 11]
A. During the last five years did you consult a medical practitioner for any ailment requiring treatment for more than a week? NO
B. Have you ever been admitted to any hospital or nursing home for General check-up/observation, treatment or operation?
NO
D. Are you suffering from or have you ever suffered from ailments pertaining to liver, stomach, heart, lungs, kidney, brain or nervous system?
NO
E. Are you suffering from or have you ever suffered from diabetes, tuberculosis, high blood pressure, low blood pressure, cancer, epilepsy, hernia, hydrocele, leprosy, or any other disease?
NO
I. What has been your usual state of health?
Good?
4. The respondent stated that the answers to above questions were false as the insured had suffered from giddiness/headache and had undergone the C.T. scan. It was stated in the report of the C.T. Scan that the respondent suffered from right temporal hematoma. The respondent had remained admitted in Dr. Chidgupkar Hospital Private Limited, Solapur from 16.08.2006 to 22.08.2006 before taking the policy. It was, therefore, evident that he had made incorrect/deliberate mis-statements and withheld correct/material information from OP/petitioner regarding his health at the time of affecting the insurance.
5. The consumer complaint filed by the complainant/respondent was allowed by the District Forum vide their order dated 31.03.2011 and the LIC was directed to make payment of the insurance amount along with interest @9% p.a. from 3.07.2009 and also `1,000/- as cost of the litigation. It was observed by the District Forum as follows:-
œ7. Indisputably, before giving the insurance policy to insurer Dayanand, his medical examination was done and then policy was issued. In our opinion, when prior to giving policy to the policyholder, LIC gets insurer medically examined by the medical professional and then issues policy then in that case the questions asked in the proposal form relating to health and ints answers become secondary. If LIC has issued the policy after getting authentic information about the health of the policyholder from medical professional then again by taking advantage of questions asked in the proposal form the policyholders legal right of insurance cannot be taken away.?
6. It was further concluded by the District Forum in the said order as follows:-
œPara 10:- In todays world, people face problems like acidity, indigestion, back pain and headache, which are sometimes chronic in nature. These symptoms may occur from time to time with different levels of intensity. They cannot be considered as diseases, which require to be enumerated while answering the questionnaire of the LIC in its proposal form.
From the above discussion it cannot be proved that while taking the policy in the proposal form insurer Dayanand furnished wrong information or suppressed the truth. LIC by repudiating the insurance claim of the complainant on very technical and wrong reasons, has made deficiency in the service to be rendered to the complainant. Thus, Complainant is entitled to get insurance amount payable on policy numbers 956920468 and 956922785 alongwith all its allied benefits and also interest at the rate of 9% p.a. from the date of reputation of claim, i.e., from 3.07.2009.?
7. An appeal was filed before the State Commission against the order of the District Forum which was decided vide impugned order and the order of the District Forum was upheld. It was stated by the State Commission that the Insurance Company had not produced any evidence to show that the insured was hospitalised and had suffered from brain ailment. It is against this order that the present revision petition has been filed.
8. At the time of hearing before us, the learned counsel for the petitioner LIC argued that copies of the record from Dr. Chidgupkar Hospital Pvt. Ltd. have been produced on record, according to which, the insured was admitted in the said hospital from 16.08.2006 to 22.08.2006, i.e., just a few months before obtaining the policies in question. It is very clear from the record that he was admitted with complaints of giddiness, headache etc. and CT scan was advised. The report of the CT scan conducted on 16.08.2006 gives the following conclusions:-
œ¦.that this CT scan study shows right temporal hematoma with minimal surroundings oedema - venus origin Post traumatic cause. Mild cerebral oedema (+). œ
9. Learned counsel argued that in replies to the various questions in the proposal form, as stated in the earlier part of this order, the insured had concealed material information from the Insurance Company and thus, had violated the terms and conditions of the contract. The assertion by the State Commission that the insurance company had not led any evidence to support their version is not correct because record from the hospital has been produced. In view of the concealment of material facts, therefore, the claim had been rightly repudiated.
10. The respondent Smt. Archana Dayanand Vakade, in her written reply has stated that as observed by the State Commission, the petitioner had not submitted the necessary evidence in support of their version before the lower consumer fora and hence, the said evidence could not be considered in revisional jurisdiction. The orders passed by the District Forum and the State Commission were in accordance with law. The so-called disease had no connection or nexus with the cause of death of the deceased. It has also been stated that the respondent is a widow and illiterate lady, residing in rural area and has no source of income and as such facing starvation. The claim should, therefore, be allowed.
11. A letter dated 27.08.2009 sent by the respondent to the LIC is also on record in which the respondent has stated that after the C.T. Scan, the doctors had told them that the insured was not suffering from a major problem. Her husband had resumed his daily work after taking the medicines prescribed by the doctors. He had taken the insurance policy after 6 to 7 months of the C.T. scan and at that time, he did not have any physical or mental problem, and no medicines were being given to him as he was totally fit. On the date of his death also, he had gone to his work and he was feeling normal throughout the day. The respondent has also stated that she was 21 years of age and she had a daughter one year old. They had invested all their savings in the LIC and many of their family members had taken policies from the LIC. The respondent requested the LIC to give a sympathetic consideration to the case and decide the claim in their favour.
12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The main contention taken by the LIC, upon which the claim was repudiated, relates to withholding / concealment of material information by the insured at the time of obtaining the policies. It is made out from the record available and not denied by the respondent also, that the insured remained admitted in hospital from 16.08.2006 to 22.08.2006 on complaint of giddiness / headache etc. It is also clear that a C.T. scan was done upon him and as per its report, the insured was found to be suffering from right temporal hematoma. These facts have not been disclosed by the insured while filling the proposal form as reproduced earlier. The answers to the four questions mentioned at para (11) A, B, D and E of the proposal form have been given in the negative. The first question at 11A relates to consultation with a medical practitioner for any ailment, requiring treatment for more than a week. In the instant case, the insured remained admitted in the hospital exactly for a week, i.e., from 16.08.2006 to 22.08.2006. It cannot be, therefore, stated that the answer to this question has been wrongly given. However, the answers to question 11 B and 11 D have been wrongly given because the insured remained admitted in the hospital for treatment and he also suffered from a brain ailment as the C.T. scan has shown right temporal hematoma. The answer to question 11E is also incorrect as it mentions the word, œany other disease?. It is made out, therefore, that the concealment / suppression of material facts is proved from the material on record. The contention given by the State Commission that the Insurance Company has not been able to give evidence about his disease etc. is not correct, as the record of hospital shows otherwise, and it has not been denied by the complainant as well.
13. The Honble Apex Court in their judgement in œSatwant Kaur Sandhu versus New India Assurance Co. Ltd.? as reported in (2009) 8 SCC 316, in which a case relating to Mediclaim policy was discussed, have held clearly that a contract of insurance falls in the category of contract uberima fides meaning a contract of utmost good faith on the part of the assured. The non-disclosure of material facts may enable the insurer to repudiate its liability under the policy. The term material fact has also been discussed in this very judgement in detail and it has been held as follows:-
œThe upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a œmaterial fact?. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.?
14. Further, the Honble Supreme Court in another judgement in œP.C. Chacko and Anr. versus Chairman, Life Insurance Corporation of India and Anr.? as reported in (2008) 1 SCC 321, have held that a misstatement by itself is not material for repudiation of a policy unless the same is material in nature. In the present case, the insured died within a period of less than 2 years of taking the policy and hence, he cannot get the advantage of section 45 of the Insurance Act, according to which an element of fraud has to be seen in the wrong statement made by the insured. In the present case, although the element of fraud may not be there, but the concealment of material information about his disease stands proved from record. Hence, the insurance company was well within its rights to repudiate the claim in question.
15. In the light of the discussion above, this revision petition is allowed and the orders passed by the State Commission and the District Forum are set aside. The consumer complaint in question is ordered to be dismissed with no order as to costs.