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2007 DIGILAW 395 (HP)

Life Insurance Corporation of India v. Amar Chand

2007-09-19

ARUN KUMAR GOEL, NARINDER SINGH THAKUR, SAROJ SHARMA

body2007
ORDER (Arun Kumar Goel, President) - Since common questions of law and fact are involved in both these appeals arising out of the order passed in Complaint No. 145/2005 which is subject matter of Appeal No. 69/2006 and in complaint No. 142/2005 being the subject matter of Appeal No. 70/2006, both decided on 21.1.2006 by the District Forum, Mandi, Camp at Sundernagar. As such, these are being disposed of by this common order. Another reason to take up these cases together is that insured in both these appeals was Shiv Ram, who had admittedly obtained two Insurance policies in the sum of Rs. 50,000/- each, in one of such policies, nominee was Amar Chand and in the other, nominee was Ami Chand. Both these policies were purchased on 25.6.2002 and the deceased-insured was admittedly according to the appellant, regularly paying insurance premium on due dates. Insured died on 15.11.2004. This was after two years of the commencement of the policy in both the case. 2.After the death of Shiv Ram-insured, father of the respondents, they lodged claim with the appellant. It was repudiated on the ground that the insured had concealed his past medial history and treatment he had undergone while submitting the proposal forms for getting insured. As such, both of them are not entitled to any amount. In this background, two complaints were filed and the claim was contested by the appellant on the aforesaid ground. With a view to support its case, documents, Annexures R.I to R.VIII were placed on record, as also repudiation letter dated 30.3.2005 (Annexure R.IX). 3.District Forum below has allowed both the complaints and has directed the appellant to pay to the respondents a sum of Rs. 50,000/- each towards the insurance claim alongwith interest @ 7-1/2 % per annum from 30.3.2005 i.e. the date of repudiation till the entire amount was paid and also to pay further sum of Rs. 1100/- each as compensation on account of harassment and cost of litigation. Hence, these appeals. 4.Mr. Ashwani Sharma, learned Counsel for the appellant submitted that the deceased-insured was suffering from chest disease even prior to his getting insured. In this behalf, he placed reliance on Annexure R.III, the fitness certificate, issued by the Medical Officer, Indira Gandhi Medical College and Associated Hospitals, Shimla to show that the deceased was on leave from 30.5.2000 to 14.6.2000. 4.Mr. Ashwani Sharma, learned Counsel for the appellant submitted that the deceased-insured was suffering from chest disease even prior to his getting insured. In this behalf, he placed reliance on Annexure R.III, the fitness certificate, issued by the Medical Officer, Indira Gandhi Medical College and Associated Hospitals, Shimla to show that the deceased was on leave from 30.5.2000 to 14.6.2000. In addition to this, he also relied upon Annexure R.IV, the certificate issued by the employer of the deceased to show that deceased was suffering since long which fact he withheld in the proposal form. 5.We may notice in this behalf, that so far as Annexure R.IV is concerned, prior to the obtaining of policy deceased was on medical leave from 30.5.2000 to 14.6.2000 only. On subsequent three occasions, he was on leave after having obtained the policy in question. 6.Annexure R.VII was pressed into service by Mr. Sharma to show that the was under treatment with Dr. R.K. Gupta of Gupta Clinic,Sundernagar, between Tuberculosis and he expired on 15.11.2004. Again, no benefit can be derived from this document by the appellant because the ailment pertains to the period after the deceased had got himself insured. 7.Annexure R.VIII is Form No. 3816 purported to have been issued by Dr. J.C. Sharma. It is again meaningless. No doubt it speaks of deceased suffering from Tuberculosis, however, when he was treated by the said doctor, there is no mention. Not only, this, it also does not show as to when this certificate has been issued. Another reason to discard is, that it is updated. When specifically confronted with Annexure R.VIII, Mr. Sharma could not satisfy us and, in our opinion, rightly because it does not indicate the date of treatment and/or when the deceased had approached the said doctor. Not only this, he has also not mentioned as to when it was issued. Therefore, this document, in our opinion, does not in any manner advance the case of the appellant. 8.It was urged by Mr. Sharma that his client had filed applications in both the cases under Section 13(4)(i)(iv) and (iv) of the Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, for summoning three doctors, namely, Dr. Sanjeev Kapoor, Dr. Mahindru and Dr. R.K. Gupta. These applications in both the cases were wrongly rejected by the District Forum, according to Mr. Sharma. Sharma that his client had filed applications in both the cases under Section 13(4)(i)(iv) and (iv) of the Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, for summoning three doctors, namely, Dr. Sanjeev Kapoor, Dr. Mahindru and Dr. R.K. Gupta. These applications in both the cases were wrongly rejected by the District Forum, according to Mr. Sharma. Per him, summoning of these doctors was necessary, therefore on this ground also, both these appeals deserve to be allowed and case remanded back to the District Forum below with a direction to summon the doctors and then proceed further in accordance with law. This contention on behalf of the appellant was seriously resisted by Mr. Digvijay Singh learned Counsel for the respondents. He submitted that so far power of the Fora under the Act to summon witness is concerned, no doubt it is there but how and under what circumstances it has to be exercised keeping in view the object of the Act, applications do not point out anything in that behalf. 9.In this behalf, we may observe that proceedings under the Act are summary in nature meant for expeditious disposal of the consumer complaints and such proceedings are to be conducted in a summary manner in the shortest possible time. In case, in the event of a case being made out that witness is either refusing to file his affidavit or there are other sufficient and good reasons to summon such a witness, situation would be different and the Fora might favourably consider the desirability of summoning a witness. A perusal of the applications filed before the District Forum below nowhere directly, indirectly or even remotely suggests that any attempt was made by the appellant to obtain the affidavits of doctors who declined to furnish the same. Had this been the situation, then there would not have been any justification on the part of the District Forum below to have refused the prayer made in the applications under Section 13 of the Act for summoning the doctors. That is admittedly not the case of the appellant. 10.In view of this factual matrix of the case, we may clarify that the applications are silent. Therefore, the District Forum below was justified in rejecting the applications. That is admittedly not the case of the appellant. 10.In view of this factual matrix of the case, we may clarify that the applications are silent. Therefore, the District Forum below was justified in rejecting the applications. At the risk of repetition, we may clarify that it needs hardly be emphasized that witnesses are to be summoned only when a case is made out in this behalf by a litigant like the appellant in these cases, which it has miserably failed in both the complaints before the District Forum below. 11.Mr. Sharma further submitted that the contract of insurance is based on utmost good faith and bona fide i.e. the principle of uberrima fides under the Insurance Act, 1938. There is no quarrel so far this legal proposition is concerned. With a view to justify this submission, it has further also to be shown that suppression of materia fact was fraudulent in nature on which an insurer like the appellant is legally allowed to challenge such misstatement and that too within a period of two years under Section 45 of the Insurance Act, 1938. Admittedly, in both these cases policies had continued for more than two years. 12.Another reason to take this view is that fraud is a question of fact and onus to prove it was on the insurer-appellant. There is no evidence worth the name placed on record by the appellant in these cases. We are further of the view that every withholding/suppression of fact in a given case does not always constitute fraud within the meaning of law of contract. We are alive to the situation that on fraud being established by acceptable and cogent evidence, contract would stand vitiated and consequences are obvious. There being no evidence worth the name, we are of the view that appellant has failed to make out the suppression/misstatement as a ground to negate the contract of insurance under law. 13.Mr. Sharma submitted that both these appeals deserve to be allowed, otherwise it will result in putting the premium on the acts of misstatement/withholding of material information regarding the state of his health by the deceased-insured. This plea is being noted simply to be rejected for the view that we have taken in the preceding paras of this judgment based on Section 45 of the Insurance Act. 14.No other point was urged. This plea is being noted simply to be rejected for the view that we have taken in the preceding paras of this judgment based on Section 45 of the Insurance Act. 14.No other point was urged. In view of the aforesaid discussion, we find no merit in these appeals, as such both are dismissed while upholding the order of the District Forum below, with no orders as to costs. Office shall place authenticated copy of this order on the file of Appeal No. 70/2006. All interim orders passed from time to time in both these appeals shall stand vacated forthwith. Office is directed to make copy of this order available to the parties free of cost as per Rules. M.R.B.———————