LIFE INFORMATION CORPORATION OF INDIA vs MOHAMMADI SULTANA

AGGRIEVED by the order in CD No. 717 of 2002 on the file of District Forum-I, Hyderabad complainant preferred F.A. 1046/2004 and F.A. 1316/2004 has been preferred by the opposite parties under Section 15 of the Consumer Protection Act. Since both the appeals arise out of common order in CD. 717/2002 they are being disposed of by a common order.

THE brief facts as set out in the complaint are that the complainant is wife of late Mohd. Akber Shareef who has taken two policies while working as Lineman and Driver in A.P. Transco bearing No. 641476874 on 15.9.1999 and another Policy bearing No. 641478387 on 28.3.2000 for Rs. 1.00 lakh each. Complainant''s husband paid the premium for the first policy @ Rs. 626 p.m. and Rs. 632 p.m. for the second policy and both these policies were for a term of 15 years. On 5.6.2000 complainant''s husband was admitted to Farooqi Nursing Home, Moghulpura, Hyderabad on account of massive heart attack while driving the office jeep and where he breathed his last. After the death of her husband complainant submitted the claim form with opposite parties. On 28.12.2001 complainant also gave a representation to opposite party No. 1 for reconsideration of both the claims since they were repudiated by the opposite parties on the ground of suppression of material facts. She also got issued legal notice to opposite parties but did not receive any reply. On 19.10.2000 opposite party repudiated both the claims on the ground of violation of Section 45 of Insurance Act. Hence this complaint seeking directions to opposite parties to pay both the policies amount i.e., Rs. 1.00 lakh each with interest @ 18% p.a., and Rs. 50,000 towards compensation and costs. Opposite parties filed counter stating that one month before the proposed policy and 7 months before the second policy the diseased suffered from Calcific Aortic Stenosis and Acute LVF for which the deceased consulted the doctor and took treatment in Care Hospital and was on medical leave from 11.8.1999 to 31.8.1999. The diseased suppressed this information in his proposal form, therefore their repudiation is justified.

Based on the evidence i.e., Exs. Al to A9 and Exs. Bl to B8 and the pleadings put forward the District Forum allowed the complaint in part directing the opposite parties to pay Rs. 1.00 lakh towards first policy together with compensation of Rs. 5,000 and costs of Rs. 2,000 while rejecting the second policy claim.

AGGRIEVED by the said order, opposite parties preferred F.A. 1316/2004 and the complainant preferred F.A. 1046/2004. Learned Counsel for opposite parties submitted that the insured took first policy on 15.9.1999 and second policy on 28.3.2000 and died on 5.6.2000 of heart attack. He relied on Ex. B3 which states that insured was treated from 11.8.1999 to 31.8.1999 and submits that the Dist. Forum has erred even in allowing the first policy amount since there was clear suppression of his ailments. He drew our attention to the patient''s history in Ex. B3 which states that patient was suffering from exertion since 1 years and that being diagnosed as Calcific Aortic Stenosis.

LEARNED Counsel for complainant submitted that the District Forum has erred in rejecting the claim of the second policy while holding that there was deficiency of service on behalf of opposite parties in repudiating the first policy. Therefore repudiation of second policy by opposite parties is also unjustified and the District Forum ought to have allowed the second policy also He further contended that the there was no suppression of facts and that the life assured died suddenly due to heart attack. We have gone through the material on record. Ex. B3 on which Counsel for opposite parties relied only says that the patient had climbed 3-4 stairs after which he had shortness of breath and uneasiness whole night and also mild fever but did not complain of palpitation/chest pain. He had history of smoking and he was finally diagnosed as Calcific Aortic Stenosis. This record by itself does not substantiate the contention of the opposite parties that insured had wilfully and fraudulently suppressed any heart diseases prior to filling up of the proposal form. It is the duty of the opposite parties to establish that there was wilful and fraudulent suppression which it has failed to do so in the instant case. The affidavit of the doctor who has treated the patient/life assured has also not been filed to support their contention that the life assured was suffering from heart ailment and was in the knowledge of this fact prior to issuance of policy.

WE rely on the judgment of this Commission in 1999 (2) ALD (Cons.) 93 in Branch Manager, LIC of India, Cuddapah v. M. Parvathi @ Radha and Another, that "mere production of doctor certificates enclosed with the application for leave on medical grounds without examining the doctors does not prove that the insured was in fact suffering from the disease and that they have been suppressed by the insured. Heavy burden lies on the Insurance Company to prove that the insured has indeed suppressed these facts."

MERE taking medical leave does not establish that the life assured was really suffering from that disease unless it is substantiated by the Doctor''s Certificate of Medical Treatment or affidavit of the Doctor or case sheet of the hospital clearly explaining the patient''s history. The District Forum having come to the conclusion that there was deficiency of service on behalf of opposite parties in repudiating the first policy ought to have allowed the second policy also on the same ground. It is pertinent to note that no reasons have been given by the District Forum for not allowing the second policy. Since the policy itself is not in dispute or the currency of the policy, the only point for consideration is whether there was any wilful and fraudulent suppression of health condition of the insured prior to issuance of the policy and this has already been observed in favour of complainant. We are of the considered opinion that there is deficiency of service on behalf of opposite parties in repudiating the second policy also.

Therefore the order of the District Forum in CD 717/2002 is modified allowing the second policy also for an amount of Rs. 1.00 lakh while confirming the other aspects of the order of the District Forum.

IN the result F.A. 1316/2004 fails and is accordingly dismissed. F.A. 1046/2004 is allowed modifying the order of the District Forum and directing the opposite parties to pay the second policy amount of Rs. 1.00 lakh to the complainant while confirming the compensation and costs awarded by the District Forum towards first policy. Time for compliance six weeks failing which the said amount would attract interest @ 9% p.a. Ordered accordingly.