GENERAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA-/ vs KOKILABEN JAGDISHCHANDRA JOSHI

BY consent of the learned Advocates this appeal has been kept today. Instead of giving number of the appeal, Civil Application for stay was given number when the appeal was filed. We accordingly take up this for hearing as stated above.

THE appellant being the opposite party in Complaint No. 195/92 filed in District Consumer Disputes Redressal Forum, Banaskantha at Palanpur has brought under challenge order dated 2.5.2000 which reads as under : "THE complaint is allowed. THE opponent is directed to pay the assessed amount of Rs. 50,000/- along with interest at the rate of 15% per annum since the date of completely till recovery. THE complainant shall also pay compensation amount of Rs. 3,000.00 by way of damages for harassment and Rs. 1,000.00 for cost. After deducting the paid amount of Rs. 10,000/- the running amount be paid to the complainant. Amount to be deposited within one month of this order."

The learned Advocates for the parties have shown before this Commission necessary papers. It would appear from the complaint filed by the respondent that her deceased husband Jagdishchandra J. Joshi got his life insured on 25.7.1990 under policy No. 850710561 w.e.f. 28.8.1990 for Rs. 50,000/-. It was the case of the complainant that her husband was hale and hearty and did not have any disability or disease or ailment whatsoever on the date when the policy was taken. He was medically examined by doctor of the Life Insurance Corporation of India. Soon after the policy was taken, said Jagdishchandra Joshi died on 8.10.1990 of sudden heart attack at village Dandia, Tal. Palanpur at about 3 O''clock in the afternoon [15.00 hrs.]. The complainant recited about the submission of claim and notice correspondence resulting into repudiation of the claim by Branch Manager, LIC of India at Deesa on 31.3.1992. Similar letter was addressed by the Divisional Office of the LIC to the claimant on 23.3.1992. The complainant, therefore, presented her grievance before the learned District Forum as aforesaid for obtaining the claim amount of Rs. 50,000/- with running interest @ 18% p.a. and compensation in the sum of Rs. 15,000/- for mental pain and suffering.

The respondent resisted the claim in the complaint inter alia alleging that the deceased Jagdishchandra Joshi suppressed material fact with regard to he having had suffered from cancer of base of tongue when insurance was taken. At the first instance the matter went ex-parte resulting into the opposite party filing Appeal No. 30/93 in which matter was remanded to the Forum by order dated 14.9.1993 and the matter once again was heard on merits by the Forum resulting into the impugned order.

AFTER hearing the parties, the learned Forum came to the conclusion that one Modi Jagdishchandra Jivrambhai took treatment of cancer on 24.5.1990 at Gujarat Cancer Research Centre, Ahmedabad and the Life Insurance Corporation of India failed to establish that he was the same person as deceased Joshi Jagdishchandra Jivrambhai. This disputed fact needed scrutiny at our hands. We, therefore, examined the material which was placed on record before the Forum. It is not in dispute that the appellant placed on record certificate of Dr. N.L. Patel on behalf of Gujarat Cancer and Research Institute stating that one Jagdishchandra Jivram Modi got himself admitted in the said Cancer Hospital on 29.5.1990. His registration number was stated to be A-96153. This document is not in dispute even before us. The appellant also produced before the Forum Diagnosis card of the patient from Sr. No. A91902 to 96153. Sr. No. 96153 which tallies with the aforesaid certificate is of Mr. J.J. Joshi, the same person for whom the certificate has been given for J.J. Modi. The reason is that the age tallies, the address of the village and the Taluka tallies, the date on which the patient was admitted to the Cancer Hospital also tallies and other particulars with regard to the person also tally. Therefore, it prima facie appeared from the hospital papers that the patient either might have given particulars of his name at one stage as Jagdishchandra J. Joshi and at other stage as Jagdishchandra J. Modi or the hospital persons might have committed mistake in writing the surname in one or other papers of the hospital resulting into the issuance of certificate by Dr. N.L. Patel on behalf of the Gujarat Cancer and Research Institute as aforesaid. The appellant Corporation also placed on record a certificate of Talati-cum-Mantri of Dandia Village Panchayat indicating that there was only one person by name and style of "Jagdishchandra J. Joshi" in the village who died on 8.10.1990 and there was no person by name and style "Jagdishchandra J. Modi". The certificate would also indicate that there was no caste with surname Modi staying in the village. The certificate was given after ascertaining these facts from the electoral roll and from village record. Finally, the appellant Corporation placed on record concerned electoral roll showing at Sr. No. 71 with house No. 27 Mr. Joshi Jagdishchandra Jivrambhai as male person residing in the village. The whole of the electoral roll does not show any person in the name and style of Modi Jagdishchandra J. staying in the village. These facts clearly indicate that Mr. Jagdishchandra J. Joshi was suffering from cancer of base of tongue and the said fact was within his knowledge when insurance was taken. We are now required to consider the submissions made on behalf of the respondent.

IT has been submitted on behalf of the respondent [original complainant] that the cause of death was heart attack. On going through the death certificate we do not find any such cause of death set out in the certificate. Reference has been made to medical certificate of Dr. D.S. Solanki, B.S.A.M., appearing at Exh. 16. IT has been submitted that Mr. Jagdishchandra J. Joshi was certified to be not suffering from any serious disease and that he was physically fit. Thus, the said doctor who is merely B.S.A.M. has not set out the cause of death of Mr. Jagdishchandra J. Joshi. He has also not filed affidavit so that he could be cross-examined by the opposite party. The certificate does not indicate that Jagdishchandra J. Joshi was not the same person as J.J. Modi either to the knowledge or the information of Dr. D.S. Solanki. Reference has then been made to the evidence of the doctor who filed affidavit on behalf of the appellant and who was cross-examined before the Forum. Dr. Deepakbhai Purushottambhai Rathod from aforesaid Gujarat Cancer Research Hospital was examined at Exh. 35. He has deposed that he was Chief RMO in the said hospital at the relevant point of time. Referring to the register he deposed that on page 268 at Sr. No. A 96153, one patient J.J. Modi by name residing at village Dandia, Taluka Palanpur, District Banaskantha was admitted to the hospital. The doctor also proved the aforesaid certificate of Dr. N.L. Patel and the same was placed at Exh. 27. The patient was admitted in surgical unit No. 2. According to the diagnosis of the patient, he was found to be suffering from cancer of base of the tongue and the medical witness opined that if proper treatment was not taken, the patient would survive for 6 to 12 months only. Reference has been made to the cross-examination of this witness where witness denied that the patient was not at all suffering from cancer indicating that in fact the said patient was suffering from cancer. The witness also denied that Exh. 27 did not pertain to patient J.J. Joshi. However, it was pointedly argued that the witness admitted that he could not depose with regard to the details of the treatment given to the patient. In our considered opinion it can hardly be doubted that the said patient suffered from cancer of base of tongue and the patient knew when he got himself admitted on 29.5.1990 about this fact. The only question which has been considered by the learned Forum and we are required to consider is whether he is the same person as the insured of the insurance policy in question. From the material noted above, it would clearly appear that the LIC has placed on record convincing material to show that he was the same person as aforesaid patient admitted to the Cancer Hospital prior to taking of the insurance. It was, therefore, for the complainant to establish that the insured was never admitted to the Cancer Hospital on 29.5.1990 nor was the same person as one who suffered from the aforesaid serious ailment. The complainant prima facie failed to show any contrary circumstances. In this background we would refer to the principle which has been noted in this Commission''s order dated 15.12.2000 in Appeal No. 69/96 which would read as under : "In the background of the aforesaid circumstances appearing on the face of the record, it can atleast be said that there are circumstances pointing at the fraudulent submission of the claim from the first stage to the last stage thereof which would need detailed investigation by elaborate evidence. It is true that when fraud is required to be established, the onus probandi regarding fraudulent suppression of material facts would rest heavily on the party alleging fraud.

It has also been held in that decision that "in the proceedings before a Consumer Forum, whenever there are allegations of fraud and prima facie appearance thereof, the Consumer Forum would not venture to investigate the same and it is settled law that in such an eventuality the complainant needs to be relegated to his civil remedy". In the present case also the Insurance Company being the opposite party prima facie established before the Forum that the insured suppressed material fact with regard to his ailment of cancer as aforesaid when the insurance was taken and it was for the complainant to show that insured was not the same person as the one who was shown to be suffering from cancer. In such circumstances, on the aforesaid principle, following order is passed. ORDER This appeal is allowed. The impugned order dated 2.5.2000 rendered by District Consumer Disputes Redressal Forum, Banaskantha in Complaint No. 195/92 is hereby set aside. Since the complainant might approach Civil Court, we do not propose to order costs. This appeal is accordingly allowed, with no order as to costs. Appeal allowed.