Decided on January 01,2009

Lic, Bilaspur Appellant
Sarojan Devi Respondents


ARUN KUMAR GOEL - (1.) E have heard the appellant as well as respondent who is present in person.
(2.) LATE Shri Raj Kumar was insured in the sum of Rs. 50,000 with the appellant at Bilaspur Branch. This insurance was obtained on 28.9.2001. He died on 1.8.2002. When claim was repudiated by the appellant on 30.9.2003, as according to it, deceased had withheld material information regarding his health. At this stage, Mr. Narender Sharma also submitted that contract of insurance is based on utmost good faith and he thus pressed into service principle of uberrima fides under the Insurance Act, 1938.
(3.) OTHER facts have been noted in detail in the impugned order by the District Forum below while allowing Complaint No. 42/2005 vide impugned order passed on 13.3.2007. As such we are not repeating those. When put to notice in the complaint by the District Forum below, besides above referred grounds, it was also set up as a defence by the appellant that respondent had approached the Insurance Ombudsman but her claim was dismissed, therefore, present complaint was not maintainable. Form No. 3816, Annexure RW.4, was also pressed into service in support of this appeal by Mr. Sharma, learned Counsel for the appellant. Lastly it was urged by Mr. Sharma that this being a clear -cut case of intentional and fraudulent suppression of material facts within the meaning of Section 45 Insurance Act, 1938, as such the contract stood vitiated. Therefore, order of the District Forum below is liable to be set aside on all these grounds and he prayed for accordingly. When a reference is made to the record of the complaint file, one fact is clear that the cause of death of the deceased was due to perforation of duodenal ulcer. This is made out from Annexure V. This is copy of death certificate issued by Community Health Centre, Bharari. Assuming for the sake of arguments without accepting the submission of Mr. Sharma that deceased was guilty of suppression of ailments from which he was suffering at the time of obtaining insurance policy, still the fact remains that none of the ailments alleged by the appellant is the cause of death due to which Raj Kumar son of Brij Lal, deceased husband of the respondent died. Here it may be appropriate to mention that according to Mr. Sharma, learned Counsel for the appellant the deceased was suffering from psychiatric disorder and was advised rest from 16.11.2000 to 5.12.2000. Besides this, deceased had already availed medical leave. So far as availing of medical leave is concerned, application is purported to have been submitted by the deceased, Annexure RW.8 and certificate issued by the Community Health Centre, Jhandutta, District Bilaspur is, Annexure RW.9. What was the type of ailment cannot be spelt out from these documents. And as already observed cause of death has no connection directly, indirectly or even remotely with the psychiatric disorder reported by Dr. Virender Mohan, whose OPD slip and fitness certificate are Annexure RW.6 and RW.7 respectively. In this behalf Mr. Sharma also laid emphasis on his affidavit, Annexure R.11, which is at page 59 of the complaint file. So far the question of an insured suffering from ailments and their non -disclosure is concerned, it is no more res integra in view of three -Member Bench decision of the National Commission in Revision Petition No. 2049 of 2000 titled Smt. Santosh Kanwar v. Life Insurance Corporation of India, dated 9.9.2008.;

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