Vanitaben Retilal Fulbaria vs LIC OF INDIA

THE complainant has filed this Revision Petition against the order passed by the State Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as the State Commission). By the said order, the State Commission has reversed the order passed by the District Consumer Redressal Commission (hereinafter referred to as the District Forum).

SHORTLY stated facts are as under:

RATILAL Jivabhai Fulbaria, deceased, on the basis of proposals made on 31.3.1992, 30.10.1993 and 31.3.1994, had obtained 3 life insurance policies for Rs. 50,000 each from the respondent Corporation issued on 17.7.1992, 16.2.1994 and 27.5.1994 commencing from 28.3.1992, 28.10.1993 and 28.3.1994 respectively. The deceased was working as a Sailor on a ship in Dubai and there he had fallen sick and took treatment from Rashid Hospital run by the Government. He was admitted in the said hospital on 5.10.1994 and was discharged therefrom after 15 days on 20.1.1994. The Medical Report, which is jointly signed by three Doctors, inter alia, records as under: "Mr. Phulbaria is a 39 years old Indian Sailor. He was admitted to Rashid Hospital on 5.10.1994 with a history of shortness of breath, which started 5 days before admission and is increasing progressively. Now he is breathless at rest and gives a positive history orthorncea and paroxysmal nocturnal dyspnoea. He smokes 20 cigarettes per day and drinks about a quarter of a bottle of whisky per day for the last 10 years."

"Progress and Management -A diagnosis of COCM (Congrestive Cardiomyopathy) with moderate mitral regurgitation and mild pulmonary hypertension was made associated with Hepatitis, most probably Alcoholic in nature."

"This patient is going back to his country. He will not be able to work as a Sailor again. He needs a sitting job. He was advised to abstain from alcohol and to attend a medical clinic regularly to follow up his heart condition."

(Emphasis supplied) The deceased returned to India on 25.10.1994 and was taken to J.J. Hospital, Mumbai by his cousin brother where he died on the same day. The post -mortem report issued by J.J. Morgue, Mumbai, inter alia, records cause of death as under: "Coronary artery heart disease with Hepatitis (Natural)"

IN the proposal forms in respect of each of the above 3 policies furnished for seeking insurance, the insured against Question No. 11(h) i.e. "Are you at present drinking liquor or intoxicating drink or smoking? had categorically replied "No". The respondent being of the opinion that the insured suppressed material fact regarding his drinking or smoking, repudiated the claim of the wife -petitioner herein who had been nominated by the insured to be entitled to take the insurance money after his death. According to the respondent, the statement made by the insured in the proposal form is the very basis of contract of insurance and the mis -statement of material facts renders the policy unenforceable and, therefore, the insurance company was justified in repudiating the claim made by the petitioner.

THE petitioner, therefore, filed the complaint before the District Forum, Junagadh, which vide its order dated 27.12.2005, allowed the complaint and directed the respondent to pay a total sum of Rs. 1,50,000 in respect of the three insurance policies of Rs. 50,000 each with accruing interest @ 12% as also to pay Rs. 1,000 as cost to the complainant. The District Forum came to the conclusion that the medical certificate produced by the respondent without the supporting affidavit of the Doctors who examined the insured in Dubai, was not sufficient to prove the fact that the deceased had suppressed the fact of his drinking liquor or smoking in the proposal forms. The District Forum relied upon the evidence of oral statement of the petitioner as well as the affidavit filed by the agents of the respondent who had given the policies to the insured to the fact that the deceased was neither in the habit of drinking liquor or smoking cigarette/bidi. The District Forum also concluded that the cause of death was not drinking and the deceased died on account of heart failure and jaundice as per the post -mortem report issued by the J.J. Hospital, Mumbai.

AGGRIEVED by the order passed by the District Forum, the respondent filed an appeal before the State Commission. The State Commission partly allowed the appeal and directed the respondent Corporation to pay to the complainant the sum of Rs. 50,000 in respect of policy commencing from 28.3.1992 along with interest @ 9% from the date of the filing of the complaint. Regarding the other 2 policies taken on 26.2.1994 and 27.5.1994 it was held that since these 2 policies had run less than 2 years, no amount was payable having regard to the provision of Section 45 of the Insurance Act. It has been held by the State Commission that the complainant had not produced any evidence to show that the medical certificate issued by the Rashid Hospital was either false or fabricated. It relied upon the order passed by this Commission to the effect that where insured failed to disclose true and correct facts in the proposal form, the insurance company would be justified in rejecting the claim.

REPRESENTA TIVES of the petitioner as well as the learned Counsel for the respondent insurance company have been heard. Written Submissions filed by both the parties have also been gone through.

DECEASED had joined the service with the Kilik Nichsion Limited Company as a Sailor and before proceeding to Dubai, he was medically examined by Dr. Ranbir Singh who found him to be a healthy person. According to the medical report of Rashid Hospital, the deceased was smoking 20 cigarettes in a day and drinking th bottle of liquor. The respondent has not produced the original certificates and only photostat copy has been put on record. Whether deceased Ratilal had admitted before the Doctor that he was smoking and drinking liquor has not been mentioned in the certificate. The certificate produced is not supported by the affidavit of the Doctor who had examined the deceased in Dubai. Identity of the Doctor before whom the deceased may have admitted that he used to smoke and drink has not been disclosed. Under the circumstances, no reliance can be placed on the certificate issued by Rashid Hospital at Dubai. This apart, the respondent -insurance company had served a show cause notice to the insurance agents - Dilip Anjariwala as well as K.G. Parmar as to why they had suppressed the fact that the deceased was in the habit of drinking th bottle of liquor daily and was smoking 20 cigarettes per day. Dilip Anjariwala, in his reply, specifically stated that the deceased was neither in the habit of smoking or was drinking liquor daily. Agent K. G. Parmar, in his reply dated 31.12.1996, stated that he knew Ratilal and never came to know that he used to drink or smoke. In the face of the statement of the petitioner that her husband was not in the habit of drinking or smoking coupled with the affidavits filed by the two agents, it is held that the respondent has failed to prove that the deceased was taking liquor daily or was smoking 20 cigarettes per day. From the post -mortem report issued by the J.J. Hospital, it is clear that the deceased died on account of heart failure and jaundice. Neither in the certificate issued by Rashid Hospital nor from the post -mortem report, it is stated that the deceased died due to drinking or smoking. Respondent company has failed to prove that the deceased had either any pre -existing disease relating to heart or that he died because of his drinking or smoking habits.

IN the face of the oral statements of the petitioner to the effect that the deceased was not in the habit of drinking and smoking daily duly supported by the two agents of the insurance company and the fact that the certificate issued by the Rashid Hospital, Dubai is not supported by the affidavit of the Doctor who had examined the deceased, it is held that the respondent company has failed to prove that the deceased had taken the policies by withholding relevant and true facts in the proposal form.

ACCORDINGL Y , the Revision Petition is accepted. Order passed by the State Commission is set aside and the Respondent Company is directed to pay the insured amount of these 2 policies as well along with interest @ 9% from the date of filing of the complaint. No costs R.P. allowed.