Life Insurance Corporation of India vs AMITA KAUSHISH

THE present appeal is directed against order dated 9.11.2000 passed by District Forum-II, Udyog Sadan, Institutional Area, New Delhi, passed in Complaint Case No. 1841/1999-entitled Mrs. Amita Kaushish v. Life Insurance Corporation of India.

THE relevant facts, in brief, are that the husband of the respondent had taken a life insurance policy for Rs. 2,00,000/- and had paid the premium of Rs. 14,063/- for the same. Accordingly the appellant had issued life insurance policy No. 120165015 valid for a period of 20 years. THEreafter, the husband of the complainant expired on 23.11.1993 while undergoing an operation for aneurysm of the brain at All India Institute of Medical Sciences (AIIMs), New Delhi. THE respondent being the nominee under the policy submitted death claim on 17.12.1993. THE said claim was, however, repudiated by the appellant/LIC vide letter dated 19.9.1995, on the flimsy ground of pre-existing disease on the ground that in the certificate of hospital treatment dated 14.11.1994 prepared by Dr. Vinod Sharma, the Consultant Cardiologist of National Heart Institute, it had been stated that the husband of the respondent had been suffering from migraine for the last 6-8 years and that the said fact had been concealed by the husband of the complainant at the time of obtaining the policy. THE respondent, however, represented against the said repudiation but despite personal visits and repeated representations dated 25.1.1996 and 14.3.1997 there was no response from the appellant and accordingly the respondent filed a complaint before the District Forum praying for directions to the respondent to release the insurance amount of Rs. 2,00,000/- together with interest @ 24% per annum from 23.11.1993, the date of death of the husband of the respondent till the date of actual payment. THE respondent had also claimed Rs. 1,00,000/- on account of mental torture, harassment and agony suffered by her during the said period. The complaint of the respondent was contested by the appellant before the District Forum on the ground that the complaint, filed by the respondent, was hopelessly barred by time and, as such, was liable to be dismissed on the said ground alone. On merits it was stated by the appellant in its reply/written version, filed before the District Forum, that Dr. Vinod Sharma, Consultant Cardiologist of National Heart Institute, East of Kailash, New Delhi in the certificate of hospital treatment dated 14.11.1994 had answered the query in column 7 of the said form stating "migraine since 6-8 years". Thus the deceased assured, had concealed and suppressed material fact relating to his health by not disclosing pre-existing disease of having migraine much prior to the taking of the policy in question. As such, the repudiation of the claim of the respondent was justified and there was no deficiency in service on the part of the appellant.

The learned District Forum on the basis of material on record allowed the complaint of the respondent and directed the appellant to pay to the respondent Rs. 2,00,000/- with interest @ 18% per annum compounded yearly w.e.f. 17.3.1994 till the date of payment together with Rs. 5,000/- as cost of litigation.

AGGRIEVED by the aforesaid order, the appellant has preferred the present appeal before this Commission. We have carefully perused the documents/material placed on record and the written submissions filed on behalf of both the parties. We have also heard the arguments advanced on behalf of the parties at length. The appellant has challenged the impugned order on two grounds mainly, firstly, that the learned District Forum had erred in holding that the complaint, filed by the respondent, was not barred by time or in the alternative the delay if any, was entitled to be condoned, as no sufficient cause for condonation of delay had been made out by the respondent in her application for condonation of delay. The second ground of appeal raised by the appelant is that the claim of the respondent had rightly been repudiated on the basis of the report of Dr. Vinod Sharma dated 14.11.1994 and, as such, there was no deficiency in service on its part. So far as the first contention of the appellant is concerned, in order to appreciate as to whether the delay in filing the complaint, could be condoned in terms of provisions of the Act, or not, it would be pertinent to refer to the guidelines laid down by the Hon''ble Supreme Court in this regard. The Hon''ble Supreme Court in case - entitled Collector, Land Acquisition, Anantnag and Another v. Master Katiji and Others, reported as AIR 1987 Supreme Court 1353 has down the guidelines as under : "The Legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on ''merits''. The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the Courts to apply the law in meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that : (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) "Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner."

Thus applying the above said criteria to the facts in hand it is apparent from the record that the respondent had been pursuing the matter with the appellant by representing repeatedly for review/reconsideration of her claim and had addressed various letters dated 25.1.1996, 19.9.1996, 23.12.1996, 6.4.2003, 5.5.1997 and 9.10.1997. Since the said efforts of the respondent elicited no response from the appellant Insurance Company, the respondent filed her complaint before the District Forum on 17.6.1998. Considering the fact that the respondent being a widow had persistently and vehemently pursued her claim with the appellant in bona fide belief that her representations would be considered sympathetically and had resorted to legal remedy as a last resort, the condonation of delay in filing the complaint by the learned District Forum was well justified in the circumstances. Thus there is no occasion for us to take a contrary view keeping the circumstances of the respondent in mind. As such, the plea taken by the appellant that the delay in filing the complaint by the respondent, was wrongly condoned deserves to be rejected being devoid of merit.

COMING to the merits of the case, the entire case of the appellant hinges on the report prepared by the consultant doctor Dr. Vinod Sharma dated 14.11.1994. It has been specifically pointed out by the learned District Forum in the impugned order that the said document was not filed in original but only a photocopy of the same had been placed on record and that too had not been proved by any affidavit of the concerned doctor. Furthermore, the contradictions in the said documents were never clarified at any stage. In query 4 of the said certificate of hospital treatment it has been specifically mentioned that at the time of admission the deceased assured had complained of severe frontal headache followed by black out and the duration of the same had been mentioned as half an hour. However, in column 7 it was mentioned that the deceased assured was suffering from migraine since 6-8 years. Thus, as had been pointed out by the learned District Forum vide impugned order, it was not clear as to whether headache referred to by the deceased in column 4 was interpreted as migraine by the concerned doctor or that was a self-assessment of the concerned doctor. Even otherwise the said document merely reports the observations made by the life assured at the time of admission in the hospital/National Heart Institute meaning thereby that the said averments are merely hearsay and are not based on actual examination and diagnoses of the reporting doctor. Furthermore, the said form appears to have been filled in by Dr. Vinod Sharma in most casual manner which is apparent from reply to query 7(b) which states ''by whom treated? and the answer to the same is ''yes''. Again in answer to query 7(c) ''by whom the history was reported ? (If not by the patient himself/herself, please indicate if it was in his/her presence and to his/her knowledge)''. The said column is blank thereby putting a question mark to the fact as to whether the observations on which the appellant is relying upon in the said document that the deceased assured was suffering from migraine since 6-8 years was actually reported by the assured himself or not. Even to the query 7(d) ''who recorded this history?'' (if the doctor is not with the hospital at present, please give his/her present address). Answer recorded to the same is ''yes''. Therefore, from the above observations it can very well be surmised that the aforesaid document is neither authentic nor capable of being relied upon in respect of the disclosures made therein. On the other hand the respondent has placed on record the medical attendant certificate dated 11.1.1994, whereby Dr. Ravi R. Kasliwal (Sr. Consultant, Cardiology, Heart Institute and Research Centre) has in column 6 categorically certified that the deceased assured had always been in good health without any illness as was observed since 1990 when he had joined Escorts Executive Check Up Annual Plan. Furthermore, the said document also reveals that the disease from which the assured was suffering was diagnosed only on 10.11.1993 and prior to that the first symptoms of the illness had occurred on 2nd November and 3rd November, 1993. Dr. Ravi R. Kalsiwal had also issued a certificate dated 9.2.2000 whereby after routine executive check up at Escorts Heart Institute and Research Centre nothing abnormal was observed. (The said documents are Annexure R-2. R-3 at pages 29 to 33 of the reply to the appeal.) The most significant document on record appears to be the Annexure R-4, the Medical Examiner''s Confidential Report dated 11.2.1993 whereby Dr. P.P. Verma who was on the panel of the LIC had physically examined the deceased assured probably prior to the issuing of the policy in question and had certified vide said document that the assured was in a state of good health and the said document does not disclose any history of migraine or any other disease. Thus there is nothing on record to show that the deceased assured was suffering from migraine for the last 6-8 years prior to taking of the policy or that the assured had wilfully and deliberately withheld the said fact from the appellant at the time of entering into contract for insurance of his life. In this regard the decisions of the Hon''ble Supreme Court in case-entitled LIC of India v. Smt. G.M. Chennabasemma, reported as AIR 1991 Supreme Court 392, is significant inasmuch as while scruitinisng the evidence in that case, with reference to Section 45 of the Insurance Act, it was observed that the burden of proving that the insured had made false representation and had suppressed material facts was undoubtedly on the Life Insurance Corporation. In the instant case the appellant has failed to discharge the said burden. Furthermore, in another decision entitled The Sr. Divisional Manager, LIC of India and Others v. Smt. J. Vanaja, reported as I (2003) CPJ 50 (NC)=1986-2002 Consumer 6814 (NS), the Hon''ble National Commission relying upon the aforementioned decision of the Hon''ble Supreme Court had further held that prior to the issuance of receipt of this order failing which the respondent would be entitled to move an application under Section 25/27 of the Act, as she may be advised, for the implementation of the order. The present appeal, filed by the appellant, stands disposed of in above terms. Appeal disposed of.