LIC OF INDIA vs K.R. VARIJAKSHAN

HEARD

ONE of the two pertinent questions that we are called upon to answer in this appeal preferred challenging the sustainability of the order passed by the Forum below in (CDRF, Kasaragod in O.P. No. 97/1998 is that whether the deceased Unnikrishnan who was the brother of complainant/respondent was suffering from epilepsy at any time before his taking Policy No. 791633752 issued by the appellants and was taking tablet Gardinal 60 mg. for his ailment. Second question posed is even if the case of the appellants that the deceased was undergoing treatment epilepsy is found to be true whether the appellants are justified in repudiating the claim made by the respondent/complainant who is the nominee on the ground of fraudulent concealment or suppression of material fact by the life assured regarding his state of health in the proposal form and also at the time of taking policy. The policy was issued to the deceased whose life was assured by the appellants and deceased died on 18.12.1996 at the Dr. T.N.A. Pai Rotary Hospital, Mangalore where D.W. 2 was working as Neurologist at that time. Before deceased was referred to that hospital by D.W. 1 he was admitted as an indoor patient at the Kasargod Nursing Home on 17.12.1996 and it is clear from Ext. R4 case sheet maintained in that hospital that the deceased was admitted to that hospital on 13.12.1996 at 6.30 p.m. and complaint was generalised concussion. Duty doctor who attended the patient at that time suspected epilepsy. Patient was conscious and was talking. Ex. R4 also proved the fact that before admission patient had taken Gardinal 60 mg. It is not the case of the complainant that immediately after admission of the patient Gardinal 60 mg. was administered to the patient as prescribed by the duty doctor who attended the patient immediately after admission. We may also point out here itself that no material was brought out in cross-examination of D.W. 1 to reach a finding that the case sheet (Ext. R4) was tampered with by him or by the duty doctor so as to create evidence to help the appellants and we find no reason to exclude Ext. R4 from consideration. No such suggestion was put to D.W. 1 while cross-examining D.W. 1 on behalf of complainant and no such fact was spoken to by the complainant in his evidence. D.W. 1 deposed that Ex. R3 is the reference letter given by him and evidentiary value of Ext. R3 is not detracted on the ground that D.W. 1 has only put his initial in Ext. R3. There is no case for the complainant that deceased was not referred to T.N.A. Pai Hospital at Mangalore by D.W. 1 from Kasargod Nursing Home.

Evidence given by D.W. 1 to that effect that he had treated the deceased as an out-patient and deceased had complained at that time headache and he (D.W. 1) thought that he (deceased) was suffering from sinusitis is believable. The condition of patient after admission of him as an indoor patient at the Kasargod Nursing Home deteriorated and the duty doctor called D.W. 1. Ext. R4 shows that at the time of examination of deceased by D.W. 1 he was unconscious. D.W. 1 attended the patient and duty doctor informed him that the patient was under treatment with Gardinal 60 mg. We do not find any reason to distrust the evidence given by D.W. 1 on the above aspect and we are also prepared to accept the evidence given by him to the effect that he cross-checked with the by-stander and by-stander told him that the deceased was taking that tablet Gardinal 60 mg. for the last one year on the ground that that fact is stated in Ext. R4 case sheet and also in Ext. R3, the photocopy of the reference letter. In cross-examination the suggestion put to D.W. 1 regarding R3 reference letter is that he has inserted in Ext. R3 "period one year ago" subsequently and that suggestion was stoutly denied by him. A cursory glance at Ext. R3 would show that no subsequent insertion was made in Ext. R3 and it was written at a stretch. It may be also remembered that there is no case for the complainant that either D.W. 1 or the duty doctor who attended the patient at the time of admission were aware that the deceased took a policy and, therefore, it is beyond our comprehension that false facts were recorded in the case sheet or reference letter to create evidence to deny the claim that would be made against the appellants in future by the nominee. We may state that no such contention was urged before us by the learned Counsel for the respondent/complainant. Nobody has a case that deceased was taking the tablet on his own without the advice of a doctor and it is also not the case of parties that when deceased consulted D.W. 1 on earlier occasions D.W. 1 advised him to take tablet Gardinal 60 mg.

THE conclusion emerges from the foregoing discussion is that deceased consulted as an out-patient D.W. 2 one year back of his death for treatment of epilepsy and D.W. 2 prescribed Gardinal 60 mg. THE evidence of D.W. 2 on that aspect is to be accepted on the ground that it is not the case of the complainant/respondent that some other doctor prescribed Gardinal 60 mg. We are accepting the evidence of D.Ws. 1 and 2 on the ground that P.W. 1 complainant in his evidence has not stated that the D.W. 1 and D.W. 2 had not treated the deceased. He admitted in cross-examination the fact of treating his brother by D.Ws. 1 and 2. He has also testified the fact that D.W. 1 and D.W. 2 are experienced doctors. He also admitted in his evidence that 4 days prior to the death of his brother deceased consulted D.W. 1. He has not stated in his evidence that D.W. 1 created documents falsely to help the appellants or facts stated in the case sheet and reference letter are not true and these documents were tampered with. Nowhere he has stated that D.Ws. 1 and 2 are inimically disposed towards him and were interested in denying insurance claim to him. We have to point out that Senior Divisional Manager of the opposite party filed affidavit in support of appellants'' case and the complainant had not chosen to cross-examine him. As there is reliable and creditworthy evidence to show that the deceased was taking Gardinal 60 mg. for epilepsy we are not prepared to discard the evidence given by D.W. 2 on the ground that in Medical Attendant''s certificate Ext. R6 it is nowhere stated by D.W. 2 that he had been treated earlier for epilepsy the deceased and medicine prescribed was Gardinal 60 mg. It is true as against the Column No. 9 in Ext R6, D.W. 2 recorded not applicable. That column is reproduced below "when and for what ailments did you treat the deceased during the three years preceding his last illness".

THE fact that D.W. 1 referred the patient (deceased) to D.W. 2 on 18.12.1996 is spoken to by D.W. 2 also and that fact is not disputed before us. THE deceased was admitted to T.M.A. Pai Hospital at Mangalore on 18.12.1996 and breathed his last on the very same day of admission. THE primary cause of death was brain stem injury and secondary cause was raised Intracrannial tension with seizure disorder. Evidence given by D.W. 2 who treated deceased clearly proved that deceased died due to illness arising from epilepsy. Thus from the evidence produced by the appellants the inescapable conclusion warranted is that even prior to the taking of policy by the deceased he was undergoing treatment for epilepsy and was taking the tablet Gardinal 60 mg. prescribed by D.W. 2. Complainant has no case that the deceased had disclosed the fact that he was suffering at the time of filling up the proposal form from epilepsy and was undergoing treatment for that disease or illness in column 11 in Ext. R1 proposal form under the head personal history. To the questions (a) to (h) under Column No. 11 answers given by deceased were ''No'' and the answer given to the question (i) what has been your usual state of health was good". So it is evident that answers given by deceased to the questions (a), (d), (c) and (i) were not true but false. The material fact that he was suffering from epilepsy was not disclosed by deceased though he was bound to disclose that fact by way of answer to the question (c) "Are you suffering from or have you ever suffered from epilepsy". We have already found accepting the evidence of D.W. 2 that deceased died due to illness arising from epilepsy.

THE material fact that the deceased (it is not argued before us by the Counsel appearing for the respondent that if the deceased was actually suffering from epilepsy at the time of taking policy he was not bound to disclose that fact and he fairly submitted that if in fact the deceased was suffering from epilepsy at that time there was suppression of material facts which the deceased was bound to disclose. THE suppression of fraudulent concealment of the material fact by the deceased is valid ground to repudiate the claim made by the respondent/complainant. We may point out that it is not argued on behalf of the complainant/respondent that non-disclosure of the fact that the deceased was suffering from epilepsy would not disentitle the nominee/complainant from claiming the amount covered by the policy. Here the claim was repudiated by the appellants before the expiry of two years from the date on which policy was effected and Section 45 of the Insurance Act is not attracted to the facts of the case. Even if section is attracted the appellants discharged the heavy burden cast on them.

WE cannot uphold the order impugned allowing the claim of complainant/respondent under the insurance policy as nominee and no deficiency in rendering service is proved on the part of the opposite parties/appellants. The claim is repudiated on valid grounds by the appellants. In the result appeal is allowed setting aside the impugned order. Appellants are awarded cost of Rs. 1,000/-. Appeal allowed.