BHOLARAM SEN vs BHARTIYA JEEWAN BIMA NIGAM

THIS is an appeal against the order dated 9.9.1997 passed by District Consumer Disputes Redressal Forum, Jabalpur in their Case No. 362/93, wherein the Forum has dismissed the complaint stating further that the complainant if he desires, may file a suit in Civil Court.

HEARD the arguments of both the parties and perused the records of the case. The undisputed facts of the case in brief are as under: (i) That the complainant''s wife Smt. Gomti Bai had taken one LIC Policy No. 370356766 for Rs. 50,000/-on her life on 20.7.1992 and she died on 4.10.1992 at about 8.45 p.m. (ii)That respondent-LIC repudiated the claim of the complainant (nominee) vide their letter No. DC-1/Repdt/1/ 94/95 dated 11.8.1994 stating that she withheld the material information regarding her being pregnant at the time of effecting the assurance with UC and also made incorrect statement about her husband''s policy that it was for Rs. 50,000/- and was effective. That the LIC held indisputable proof to show that she was pregnant at the time she proposed for above insurance and that her husband''s policy was for only Rs. 20,000/- and not Rs. 50,000/- and was in lapsed condition since March, 1992. (iii) That the District Forum vide their order dated 6.1.1995 accepted the complaint and directed the respondent-LIC to pay to the complainant insured sum of Rs. 50,000/- alongwith compensation, proceedings expenses and interest etc. as detailed therein. (iv) That, in appeal, the M.P. State Consumer Disputes Redressal Commission, Bhopal set aside this order of the Forum stating that as per procedure laid down in Section 13(i) of the Consumer Protection Act, the parties cannot be directed to file "affidavit only" as ordered by the Forum in their note sheet order dated 11.11.1994 and directed that the case be disposed of "afresh" giving due opportunity to both the parties "to adduce such evidence as they may choose to produce". (v) After the case having been remanded, the respondent-LIC filed affidavits of Messrs Pramod Sharma, Ravindra Singh and B.S. Makkarh, all three officials of respondent-LIC and cross- examined Messrs Bala Prasad, Narain Kotwar and Kamal Singh whose affidavits dated 16.3.1996 stating that late Smt. Gomti Bai was not pregnant, were filed by the complainant. (vi) That the LIC got an enquiry conducted by Shri B.S. Makkarh, who has in his affidavit dated 14.7.1997 stated that his investigation report was based on the joint statements dated 11.11.1993 of Messrs Bala Prasad and Narain Kotwar and statement dated 7.3.1994 of Kamal Sen and that statement of Kamal Sen is counter-signed by one Damoo father of deceased. (vii) As has been stated by respondentLIC in their additional written statement dated 10.11.1995, and from documents on record, we find that the "indisputable proof" on which LIC has relied upon, for stating that Late Smt. Gomti Bai was pregnant at the time of taking insurance consists of following documents/evidence, all told;

(a) One line statement dated 11.11.1992 signed by Messrs Bala Prasad and Narain Kotwar (Ann. NA-8). (b) Statement of Kamal Prasad dated 6.3.1994 bearing signature of one Damoo or Pammo below the signature of Kamal Prasad (Ann. NA-7). (c) Statement dated 11.11.1993 of Smt. Mohini Sharma, ANM, Nayanagar - (Ann. NA-6). (viii) That the District Forum in their order under appeal has held in para 25 of their order that Messrs Kamalsingh, Bala Saheb and Narain Kotwar, all three are unreliable witnesses for reasons recorded therein and has stated that none of the parties derives any benefit from their contradictory statements. The District Forum has given cogent reasons in their order under appeal for disbelieving either of the testimonies of these three persons. Thus according to the District Forum Annexures 7 and 8 produced by respondent-LIC and also the affidavits of these three persons filed by the complainant have no evidentiary value. Neither the appellants in their appeal memo, nor either of the two parties during the course of their arguments, challenged this finding of the Forum. (ix) The respondent-LIC has not rebutted this contention of the complainant as contained in his additional reply dated 18.3.1996 that the LIC had got late Smt. Gomti Bai examined by LIC''s doctor Smt. Nirmala Bhatta, MBBS No. 513374 on 29.8.1992 and she had also reported that late Smt. Gomti Bai was not pregnant. (x) Similarly the respondent-LIC has not rebutted this contention of the complainant as contained in para 4 of his written arguments dated 18.3.1996 that late Gomti Bai died on 20.8.1992, whereas in the statement of Smt. Mohini Sharma, ANM the date of death has been stated as 5th or 6th May, and therefore her statement is false or fabricated. (xi) The respondent-LIC has not made any comments anywhere about, nor has rebutted the authenticity of the following documents which declare cause of death as DVD and not bleeding after delivery. (a) Certificate dated 16.6.1993 of Capt. J.L. Saigal, Asstt. Surgeon, Medical College Hospital, Jabalpur. (b) Certificate of hospital treatment in Form No. 3816 prescribed by LIC, issued on 8.6.1993 by Capt. Dr. J.L. Saigal, Asstt. Surgeon, Medical College Hospital, Jabalpur. (c) Death certificate dated 10.8.1993 issued by Gram Panchayat as per entries made in death register on 5.10.1992 i.e. on second day of the death of late Smt. Gomti Bai. (d) Death certificate dated 5.11.1992 issued by Gram Panchayat, Sukha (Bharatpur) signed by Sarpanch, Ghanshyam Panch and Narain Kotwar.

We entirely agree with the finding of the District Forum that either of the testimonies of Messrs Bala Saheb, Narain Kotwar and Kamal singh are reliable, and none of the parties derives any benefit from their contradictory statement, more so, at least not the respondent- LIC because the statements filed by LIC are not "on oath" whereas filed by complainant are "on oath".

THEREFORE, the only document remaining to substantiate the contention of LIC regarding deceased insured''s pregnancy is Ann.-VI, being the statement of Smt. Mohini Sharma, ANM, Nayanagar. But here, regarding this statement, following points have to be kept in mind, while accepting the authenticity of the contents of the statement: (i) The date of death mentioned herein as 6th or 7th May, whereas undisputedly the date of death is 4.10.1992. (ii) Smt. Mohini Sharma has given a note that in this connection she has in her possession entry dated 21.5.1992 whereas date of death being 4.10.1992, entry dated 21.5.1992 has no relevance. (iii) She states that she alongwith late Smt. Gomti Bai started at 9.00 p.m. whereas according to the certificates issued by Dr. Saigal and also in the records of Gram Panchayat, Smt. Gomti Bai had expired at 8.45 p.m. (iv) Smt. Mohini Sharma further specifies that Smt. Gomti Bai had died after Akshaya Tratiya. That Akshaya Tratiya falls in Indian Calender in the month of Vaishakha after 45 days after Holi i.e. usually in April or May, whereas late Gomti Bai actually died after about five months after Akshaya Tratiya. (v) Who obtained the statement of Smt. Mohini Sharma dated 11.11.1993 is beyond our notice from the records as before us. Contents of this statement are not corroborated by any affidavit.

The above scrutiny of certificates issued by Smt. Mohini Sharma creates a very strong doubt that she is referring to some other lady and not late Smt. Gomti Bai.

BESIDES this, following documents furnished by the complainant cannot be over- looked. (i) Death certificate dated 19.8.1993 stating that the death of late Smt. Gomti Bai was registered on 5.10.1992 i.e. just a day after her death, and gives details of her ailment, her check- up by LHV (Lady Health Visitor, Ku. Malti Rao and referred to Medical College, Jabalpur Ann. A-5). (ii) Certificate of hospital treatment dated 8.6.1993 issued by Asstt. Surgeon, Medical College Hospital Jabalpur stating that late Smt. Gomti Bai was referred to Medical College Hospital by LHV, sub-centre Kohla, PHC Chargawah, and the cause of death has been given as DVD (Diarrhea, vomiting and de-hydration). (iii) Similar facts are given in death certificate dated 5.11.1992 issued by Sarpanch, Gram Panchayat, counter- signed by Panch Ghanshyam and Narain Kotwar (Ann. A-4).

Smt. Gomti Bai died on 4.10.1992 and she was examined by LIC''s lady Dr. Smt. Nirmala Bhatta, MBBS on 29-8.1992. Smt. Mohini Sharma has stated that late Gomti Bai had delivered a child before her death. If that is so, how could a pregnancy of about seven months missed the notice of Lady Dr. Nirmala Bhatta, who certified in her report that insured was not pregnant at the time of examination by her. This creates further impression that allegation of mis-statement of "no pregnancy" is not correct. The burden of proof to establish that the insured gave incorrect statements about her health or pregnancy lies heavily on the LIC and the LIC has utterly failed to discharge this burden. Claim cannot be repudiated arbitrarily or simply on hearsay or presumptions. Wrong or incorrect statement about husband''s policy is immaterial. The fact that she worried more than 2 acres of land which was irrigated is established by copy of Khasra Panchashala and Kistband Khatoni filed on record. These documents are reliable documents unless proved otherwise.

WHETHER the death was due to suicide or murder or food-poisoning or unnatural is not an issue for consideration before Consumer Disputes Redressal Agencies unless alleged. There is no such allegation anywhere. All that these Agencies have to see is whether the repudiation was in good faith with due application of mind. As stated in earlier paragraphs the repudiation has absolutely no justification and has been done without due verification and due application of mind.

AS such we allow this appeal and set aside the order of the District Forum and hereby order that the respondent-LIC shall pay .the amount of sum assured being Rs. 50,000/- to the complainant alongwith interest at the rate of 12% p.a. from the date the complaint was filed before the District Forum till payment. It is further ordered hereby that the respondent-LIC shall pay Rs. 2,000/- as proceedings expenses to the appellant. Appeal allowed with costs.