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2005 DIGILAW 3 (UTT)

LIFE INSURANCE CORPORATION OF INDIA v. NANDI DEVI

2005-01-10

K.D.SHAHI, LUXMI SINGH

body2005
ORDER Mr. Justice K.D. Shahi, President—This is an appeal against the order dated 10.6.2003 passed by the District Forum, Nainital whereby the complaint of the complainant was allowed against the appellant, LIC. 2. The brief facts of the case are that Sh. Pramod Kumar Singh had got a policy of Rs. 1,00,000/-. He died on 11.8.1995 all of a sudden. On the claim, it was repudiated on the ground that he has suppressed the material fact regarding his illness at the time of taking of the policy. The policy was taken on 28.12.1994. The insured died on 11.8.1995. An investigation was made in the matter by the LIC and it was found that Sh. Pramod Kumar Singh has taken leave on the ground of illness. The details of such leave have also been given in the judgment passed by the learned Forum. On this ground of suppression of material fact, the claim was rejected. 3. The learned Forum took the evidence of the parties and decided that the leave has been taken in routine manner. There is no evidence of any illness, treatment, etc. and, therefore, it cannot be said that any fact was suppressed deliberately. 4. It is also alleged in the complaint that the authorized agent of the LIC has filed in the proposal form. He did not make any inquiry from the insured and he furnished the details out of his own, therefore, there is no question of any suppression. In the grounds of appeal, a plea has been taken by the appellant that agent is the agent of the insured, he is not the agent of LIC and, therefore, there is no liability of the Insurance Company if the agent of the insured has not disclosed the true facts. 5. We have heard Mr. Deepak Ahluwalia for the appellant. Mr. Vivek Gupta had appeared on behalf of the complainant but for the last 3-4 dates he is not appearing. We, therefore, heard Mr. Deepak Ahluwalia, learned Counsel for the appellant ex parte and gone through the records. The first objection of the learned Counsel for the appellant was regarding condonation of delay. It is said that the delay has been condoned on insufficient ground. The insured died on 11.8.1995. It is said that repudiation was done on 22.1.1997. We, therefore, heard Mr. Deepak Ahluwalia, learned Counsel for the appellant ex parte and gone through the records. The first objection of the learned Counsel for the appellant was regarding condonation of delay. It is said that the delay has been condoned on insufficient ground. The insured died on 11.8.1995. It is said that repudiation was done on 22.1.1997. The complainant has specifically come with the allegations that the repudiation order was not served over her and when she received another letter on 3.1.2001, then she could know that the claim has been rejected and then she filed the complaint. The learned Forum has found the allegation as correct and, therefore, condoned the delay. In the matters like these, it is the view of the Hon’ble Supreme Court that the delay should be ordinarily condoned and the parties should be allowed to contest the matter on merits unless the case of the complainant is devoid of any merit. The learned Forum has also allowed the complaint and prima facie before proceeding into merits, we find that the complainant has got an arguable case on merits, therefore, we are also inclined to accept the condonation of delay as passed by the learned Forum. Reliance was placed before the learned Forum on paper No. 16/2. It was directed to be filed by the LIC. It was filed but the learned Forum has disbelieved this paper and the signature of Smt. Nandi Devi as given on the complaint or other papers specifically shows that she appears to be little literate lady. There is no question of her giving her signatures in English. The learned Forum has rightly disbelieved that paper. 6. We are not going to take any judicial view but at least it is a known fact and drivers and conductors of the Roadways Department are never allowed any leave by the department. There is always shortage of drivers and conductors and the buses and if any person has to take leave, there is no other alternative to take leave except becoming absent on the ground of illness and when duty is resumed, a medical certificate and fitness certificate is submitted and the department has no option but to allow leave on that ground. This has become the general method of taking leave where service are essential and where no leave is liberally granted by the department. 7. This has become the general method of taking leave where service are essential and where no leave is liberally granted by the department. 7. There is absolutely no evidence of any treatment, purchase of medicine, hospitalization of the insured. The papers produced in the case only show that all the papers have been created only to take leave. The leave chart filed by the LIC as paper No. 59 clearly shows that the insured has been on regular leave and that is method of his taking leave. The appellant itself has procurred the copies of the leave applications and all these papers show that this is all pretended illness. Paper No. 61 is the application of the insured, in which he has written all of a sudden he has become ill on 22.3.1990. The medical certificate been issued by Dr. L.H. Khan. He is G.U.M.S. (B.U.), R.M.P. and what he has written is that Pramod Kumar is suffering from Vertigo at this time 5.00 p.m. on 22.3.1990, so he is advising him rest of today. What is this illness? Then the other leave application is in the same words that the applicant became ill all of a sudden and he desired leave from 1.1.1991 to 3.1.1991. In the medical certificate fever has been shown. The certificate has been issued by Dr. H.O. Varshney, registered practitioner. He has not even given his qualification. Then there is application dated NIL, in which it has been written the insured remained on medical leave from 16.2.1991 to 28.2.1991 and he appeared along with medical certificate. Same Dr. H.O. Varshney has given this certificate and the illness has been shown as malarial cough. All the illness in all the certificates has been shown as ordinary diseases and indisposition. In almost all the cases the insured has availed the leave and has appeared along with medical and fitness certificate issued either by Dr. Varshney, whose qualification has been given in the certificate dated 22nd September, 1991 as Pharmacist and R.M.P. by U.P. Govt. (Lucknow), Medical Officer, State Bank of India. He is not even a qualified doctor. He is only a registered medical practitioner and Pharmacist. If a person is actually ill, he will not take any treatment from these zhoola chaap doctors sitting on road only to prepare medical certificates and fitness certificates. All the certificates have been issued either by Dr. (Lucknow), Medical Officer, State Bank of India. He is not even a qualified doctor. He is only a registered medical practitioner and Pharmacist. If a person is actually ill, he will not take any treatment from these zhoola chaap doctors sitting on road only to prepare medical certificates and fitness certificates. All the certificates have been issued either by Dr. Khan or by Dr. Varshney and both are only doctors of issuing certificates of medical and fitness. In the certificate from 16.11.1991 to 30.11.1991, during which leave has been availed, the illness is said to be weakness only, i.e., “was suffering from weakness”. There was neither any such disease, nor any such illness, which was tried to be suppressed by the insured. All these certificates and pretended illness has been only to take leave and it is not at all necessary that such pretended illness and leave should be disclosed at the time of taking the policy. There is neither wilful suppression, nor any illness, nor any material fact, which has been suppressed. As said above there is absolutely no evidence of any admission in any hospital, taking any treatment, purchasing any medicine etc. 8. It is true that the agent is the agent of the insured and not of the LIC but the question is not this, whose agent he is? The question is of wilful suppression of fact. He may or may not be agent of the insured but it is the duty of the agent to have informed the insured that he was duty-bound to disclose of having taken all his leaves and illness and if he informed and the insured did not disclose, then there shall be suppression. But when the insured did not know that he has to explain these certificates and pretended illness, then there cannot be any suppression, much less wilful. The LIC has investigated the matter and there is nothing on record to show that it has examined the alleged agent and that is he has told that he has asked the insured to disclose these facts, still he has not disclosed. In the absence of any such evidence it cannot be said that there was any wilful suppression. At any rate the alleged and pretended illness was not material at all and it cannot be said that there was any suppression, much less wilful. In the absence of any such evidence it cannot be said that there was any wilful suppression. At any rate the alleged and pretended illness was not material at all and it cannot be said that there was any suppression, much less wilful. We do not find any force in this appeal and the appeal is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy. Appeal dismissed.