BHASANT BALLABH TEWARI vs Life Insurance Corporation of India

THIS is an appeal against the order dated 9.3.1999 passed by the District Forum, Nainital whereby the complaint of the complainant was dismissed.

THE brief facts of the case are that Sh. Girish Chandra Tewari was the son of the complainant Sh. Bhasant Ballabh Tewari. He was insured for a sum of Rs. 1,01,000/- (Rupees one lac one thousand) on 23.3.1990. THE complainant is the nominee of that insurance. At the time of taking the policy Sh. Girish Chandra Tewari was fully hale and hearty. He was not suffering from any disease. At the time of submission of the proposal form, the Insurance Company has got the insured medically examined by its doctor. THE insured was to get 15% of the insured amount after every 5 years of the insurance and Sh. Girish Chandra Tewari received a sum of Rs. 15,150/- (Rupees fifteen thousand one hundred fifty) on 30.11.1995. THE entire premium has been paid. However, the insured died on 9.9.1996. In spite of the completion of all the formalities the insured amount was not paid to the complainant. Only a sum of Rs. 5,201.50 (Rupees five thousand two hundred one and fifty paise) was desired to be paid. THE complainant did not accept that amount. It is alleged that on 15.5.1996 Sh. Girish Chandra Tewari fell ill for the first time and he was admitted for examination in Soban Singh Zina Base Hospital, Haldwani. He was never ill earlier. THE complainant, therefore, filed this complaint for payment of insured amount. The Insurance Company filed written statement and alleged that it is expected of the insured that he will disclose the true facts at the time of proposal of the policy or its revival and if no such information is given the policy becomes void. It is alleged that the policy has lapsed and it was revived on 27.11.1995. At the time of revival of the policy, the insured has given declaration of good health and he alleged that he was not suffering from any disease. He did not disclose that he has not suffered any disease or has taken any treatment. The true facts are that in September 1994 the insured has got malignant Brain Tumour and he has got himself treated in Haldwani Base Hospital and All India Institute of Medical Sciences, Delhi. The insured did not disclose this fact at the time of revival of the policy, therefore, he is guilty of non-disclosure of material fact and, therefore, his claim has been rejected. The Insurance Company has alleged that the insured was suffering from Malignant Brain Tumour from before 1994 and he has not disclosed this fact, therefore, he is guilty of fraudulent act while the insurance matter is a matter of utmost faith and uberimmafides.

The learned Forum after taking the evidence of the parties and hearing them rejected the complaint, against which order the present appeal has been filed.

WE have heard the learned Counsel for the parties and gone through the records. The only dispute is whether the insured was suffering from malignant brain tumour from before September 1994 and this fact was within his knowledge and he has deliberately suppressed this fact at the time of the revival of the policy. The policy was taken on 23.3.1990. There is no allegation that on 23.3.1990 the insured was ill. Not only this a sum of Rs. 15,150/- (Rupees fifteen thousand one hundred fifty) is said to have paid to the insured on expiry of 5 years, i.e., on 30.11.1995. However the dispute is that in September 1994, the insured suffered from brain tumour malignancy and at the time of the revival of the policy on 27.11.1995 he did not disclose this fact. The revival is dated 27.11.1995. The Insurance Company has filed papers to show that the insured was operated as a case of Malignant Glioma on 18.8.1996. This shows that the operation if any was on 18.8.1996 after revival. The question is merely because there was operation on 18.8.1996, can it be said that the insured was suffering from this disease from September 1994 and also on the date of revival and this fact was not disclosed, therefore, he was guilty of suppression of material fact. The insured is now dead. The complainant says that this was never in their knowledge before the operation that there was any such brain tumour. What is necessary is that there should be earlier disease and that too in the knowledge of the insured. If the insured did not know about that illness, he cannot be held to be guilty of suppression of material fact. There is no paper on record to show that before the operation the insured was anywhere in treatment. In fact if he had been suffering from any such disease like brain tumour from May 1994, he should have taken some medicines anywhere, should have consulted some doctor, should have got some treatment but there is absolutely no such allegation except the declaration of the doctor on Form No. 5152. The doctor has written in this form that he was for the first time consulted on 15.5.1996. The complainant has also admitted that the insured became ill for the first time on 15.5.1996. In this certificate, it is written that the insured has been suffering from this disease for the last one year. On what basis the doctor wrote this is not clear when he has not earlier treated the insured and has not earlier seen him? The Department of Neurosurgery, All India Institute of Medical Sciences, New Delhi has also written that there were some focal motor seizures since 1994. It might have been there but the doctor has written that the insured was having headache only for the last 3 months and resp distress for few hours. That is merely because there might be some tumour in the head, which was not known to the insured, he cannot be blamed for this suppression. The doctors on examination may know from when it was there but an ordinary patient will take it as a case of headache, pain etc. If he could have known it, he should have definitely taken some treatment earlier. The learned Forum has given a finding that at the time of revival on 27.11.1995, the insured did not disclose about his illness. If this fact was not known to the insured, how he could have disclosed it? Secondly also there is no proof that if the insured was ill by this disease earlier, he has taken some treatment or has consulted any doctor for this disease. There is also no evidence that he has been earlier admitted in any hospital for this disease. The learned Forum on the basis of paper Nos. 17/5, 17/8, 17/9, 17/10 and 17/11 has given a finding that these papers give a clear indication that the insured was ill before May 1994. Paper No. 17/5 is the certificate of good health dated 27.11.1995. It discloses nothing. Paper No. 17/8 only shows that the insured was operated on 18.8.1996 and he died on 9.9.1996. There is nothing to show any earlier illness. Paper No. 17/9 is the Claim Form B-1. It only shows that the insured was discharged from Delhi Hospital after operation for malignant Glioma and the date of admission is 1.9.1996. This paper proves nowhere that there was any earlier illness. The only paper which can be relied upon is Paper No. 17/10, in which it is written that for the last one year, the insured was suffering from this disease. We have already said above that this doctor who has given this certificate has never treated the insured. He has never consulted before 15.5.1996. This certificate is also incomplete because in the column what were the symptoms of the illness, the doctor has written Fats Headache. The second column that when were they first observed by the deceased, there is absolutely no reply. Then how it can be said that the deceased knew this fact from before 15.5.1996. In the column what was the history reported to you on the date of first consultation, the doctor has crossed the reply column. This means that nobody has given him this history of one year illness. In the column names of the doctors by whom the deceased was treated for such ailments, the doctor has crossed the reply. In the column were you the deceased''s usual medical attendant and if so for how long you have treated him during this period, the reply is No. We fail to understand how such a certificate can be believed and how a finding can be given that the insured knew about this illness from before 15.5.1996. Then reliance has been placed on Paper No. 17/11, in which the existence of focal motor seizures since 1994 has been disclosed. The doctor has only written this fact. He did not give any basis on which he has written this and also there is nothing to indicate that only because of headache for the last 3 months, the insured could have known about this illness. The finding recorded by the learned Forum is no finding in the eyes of law because it has given a decision without convincing evidence. It has only gone on clear indications and as said above these papers indicate nothing.

SINCE there was no evidence that the insured knew about this disease or he was suffering from any disease from before revival of the policy, therefore, he cannot be held to be guilty of suppression of material fact. Therefore, the repudiation of the claim by the Insurance Company is totally illegal and beyond the scope of the Insurance Authorities. We are supported by the ruling reported in I (2001) SLT 89, Life Insurance Corporation of India and Others v. Asha Goel and Another, in which it has been held that the claim should not be rejected in routine and mechanical manner. It is a matter of extreme care and caution. In this ruling, the report of the doctor who was maintaining records of treatment etc. was rejected. In this ruling the doctor who issued certificate has treated the insured but in the present case there was no such treatment before 15.5.1996 by the said doctor, who has issued the certificate. In view of what has been said above, the appeal is fit to be allowed and the order under appeal is fit to be set aside and the complaint is also fit to be allowed. ORDER The appeal is hereby allowed. The order dated 9.3.1999 passed by the District Forum, Nainital is hereby quashed. The complaint is also allowed. The Insurance Company, respondent is hereby directed to pay the entire insured amount (minus) payment made, if any to the complainant along with the entire benefits available on the said policy. The amount shall be calculated as payable on 19.5.1997 and the complainant shall get interest on the calculated amount @ 9% payable from 19.5.1997, on which date the complaint was filed till the actual date of payment. Cost of the appeal shall be easy. Appeal allowed.