PADMAVATI N DALYA Vs. L I C OF INDIA

JUDGEMENT

(1.) THIS appeal is preferred by the original plaintiff to challenge judgment and decree dated March 31, 1986 passed by Joint Civil Judge, Senior Division, Kolhapur in Special Civil Suit No.102 of 1980. By the impugned judgment, the trial Judge dismissed the suit for recovery of Rs 1,32,105/- based on life insurance policy dated March 13, 1971 secured by deceased husband of the plaintiff. The facts, which gave rise to passing of the impugned judgment, are required to be briefly stated to appreciate the grievance of the appellant. Nand Kishor Dalia was married on December 13, 1970 with the appellant. Nand Kishor was born on November 1, 1950 and during his minority, Nand Kishor's father had taken out two life insurance policies for Nand Kishor for a value of Rs 25,000/- each. After marriage, Nand Kishor took out a policy on March 13, 1971 for an amount of Rs 1 lakh. The policy was for a duration of 20 years and Dr. Prabhu certified, on the statement made by Nand Kishor, that Nand Kishor was not suffering from any health problem.

(2.) NAND Kishor had a serious problem of kidney failure and was admitted in Mission Hospital at Miraj on February 10, 1974. NAND Kishor gave history of his illness and informed Dr.Thomas that he had symptoms of kidney problems right from year 1965. NAND Kishor remained as indoor patient in Mission Hospital and, after Dr. Thomas came to the conclusion that NAND Kishor had chronic problem of kidney failure, NAND Kishor was advised to approach Christian Medical College at Vellor. Accordingly, NAND Kishor went to Vellor Hospital in February 1975 and kidney transplant operation was performed. The case sheet of admission of NAND Kishor to Vellore Hospital sets out that albuminuria was detected for the first time in June 1965 while tuberculosis of kidney was diagnosed in October 1966 for which NAND Kishor was given treatment for 1 1/2 years. Microscopic haematuria persisted till November 1966 and significant albuminuria was noted since 1969. Hypertension was detected in March 1973 and raised blood urea and serum creatinine were detected in January 1974. In February 1975, NAND Kishor, on admission to the Vellore Hospital, was found to be suffering from chronic renal failure and was put on conservative treatment. NAND Kishor was again admitted in Vellore Hospital on October 13, 1975 and the history sheet indicates that NAND Kishor was on dialysis since July 29, 1975. On October 15, 1975, NAND Kishor was admitted for renal transplantation and operation was performed, but the kidney was rejected. NAND Kishor was put back on dialysis and nepherectomy of the transplanted kidney was done on October 31, 1975. The patient was discharged to continue maintenance dialysis as an outpatient. Finally, NAND Kishor was admitted back to the hospital on December 9, 1975 on complaints of fever, diarrhoea and vomitting and infection process was thought of. Condition of NAND Kishor deteriorated and he expired on December 12, 1975.

(3.) DR. Shastri is serving in Christian Missionary College Hospital at Vellore since year 1971 as the Head of Nephrology Department. DR. Shastri deposed that in year 1975, he examined Nand Kishor and noticed that the patient had chronic kidney failure. DR. Shastri then deposed that Nand Kishor himself gave history of the disease and stated that in the year 1965, he was screened because of death of his elder sister due to kidney failure. DR. Shastri then produced certificate of hospital treatment (Exhibit 116) which clearly recites that the history was given by Nand Kishor himself. Indeed, the appellant admitted in cross-examination that the information was given by Nand Kishor to DR. Shastri. The certificate issued by Vellore Hospital clearly sets out that the problem was one of renal failure and was a chronic problem and Nand Kishor was admitted on advice of DR. Marda of Kolhapur. Reference will be made to the testimony of DR. Marda at a later stage. DR. Shastri also produced copy of letter written on April 4, 1977 to Deputy Medical Superintendent of Mission Hospital at Miraj and that letter (Exhibit 118) clearly sets out the case history of Nand Kishor. DR. Shastri was examined on commission and DR. Shastri stated in examination-in-chief that all the case papers of Nand Kishor were available with the witness at the time of giving deposition. The cross-examiner did not think it wise to produce the papers on record nor asked any question about the statement made by Nand Kishor. This evidence led by the Corporation, in our judgment, conclusively establishes that Nand Kishor was fully conscious of the kidney problem suffered by him from year 1965 but still did not disclose it while taking out the life insurance policy in year 1971.