Krishna Wanti vs Life Insurance Corporation Of ...
1999 Latest Caselaw 1040 Del

ORDER

S.N. Variava, C.J.

1. This Appeal is against a Judgment dated 3rd December, 1973. By this Judgment, the Suit of the Appellant herein had been dismissed. The Appellant is the widow of one Shri Dharam Pal Puri, who expired on 5th August 1964. During his lifetime, Shri Dharam Pal Puri had taken out four LIC policies, particulars whereof are as under:-

Date Policy Amount Policy No. 12-10-1959 Rs.10,000/- 6081583 12-06-1961 Rs.25,000/- 6151357 10-03-1964 Rs.45,000/- 6297731 15-06-1054 Rs.5,000/- 8315544

2. In the Suit, the Appellant claimed the amount of four policies from the Respondent Corporation on the ground that she was the assignee under those policies. The defense taken up by the Respondent was that the said Shri Dharam Pal Puri was suffering from heart disease and that he knew about his ailment and that he had consulted doctors about these disease but that he had fraudulently suppressed these facts.

3. On the pleadings of the parties, the learned Single Judge raised the following Issues :-

1. Is the Plaintiff entitled to recover the amount, if any, due to her on the policies mentioned in the plaint, on the allegations made in the plaint?

2. Who is the assignee of these policies?

3. Are the defendants entitled to deny payment to the Plaintiff on the grounds stated in the written statement?

4. Relief?

4. It is not disputed that the Appellant was the nominee under the policies. The main question, therefore, before the Court was whether or not the Appellant was entitled to recover the amount under the policies and/or whether the Respondent were entitled to deny payment on the grounds as stated above.

5. The learned Single Judge has relied upon the evidence of three witnesses of the Respondents, all of whom were doctors. On the basis of that evidence the learned Single Judge has held that the deceased Shri Dharam Pal Puri was suffering from a heart disease, and knowing about this ailment he had fraudulently suppressed these facts. On these basis the learned Single Judge has held that the Respondent were entitled to deny payment and dismissed the Suit.

6. It, therefore, becomes necessary to see whether the evidence of these three witnesses, which has been relied upon by the learned Single Judge supports the case of the Respondents.

7. One of the doctors, whose evidence has been relied upon by the learned Single Judge, is Dr. (Miss) Padmawati. In her evidence-in-chief she has given her qualification and has confirmed that two certificates were issued by her. She goes on to state that the contents of those certificates had been verified from the record of Lady Harding Hospital which had been supplied to her. The two certificates have been marked as Exhibits D-6, Certificate Ex. D-5 is dated 2nd December, 1964. It is thus to be seen that this Certificate is issued much after the date of death of Shri Dharam Pal Puri. In this Certificate, she states that Shri Dharam Pal Puri had been seen by her in Lady Harding Hospital on 29th May, 1959 and 25th September, 1959. She states that she has not seen him after that date. She further states that she was unable to complete the form which the Respondent had sent to her as she did not know anything about the cause of death, date or place of death. The other Certificate, Ex. D-6, is dated 11th December, 1964. This is a form which has been sent to her by the Respondent and which has been filled up by her. Column 5A, B, C, F and G and answers thereto read as follows :-

5.(a) What was the exact cause (a) Primary cause Mihal of death? (Besides defining Strain Aminilar Filuttation.

the disease or other Cause of death in such terms as. You consider appropriate, kindly add. The distinctive technical name).

(b) Was it ascertained by (b) From symptoms examination after death or during life inferred from symptoms and appearance during life?

(c) How long had he been (c) Since 1946 suffering from this disease before his Death

(f) What was the date on which (f) 29-5-1959 you were first consulted during the illness?

(g) Did you attend him during g) No. Seen by me the whole of its course? If not, only on 2 occasion state during what period? 29-5-59 and 25-5-59.

I have not seen him since 25.9.1959.

Columns 7 and 8A and the answers thereto read as follows:

7. What other disease or illness preceded (ii) or co-

existed with that which immediately caused his death?

Give history of such disease or illness stating :-

(a) Date when such first (a) Since 1946 according observed to his statement.

(b) By whom treated (b) Cuel Sugar Salhot.

(c) By whom history reported (c) By patient.

to you 8 (a) Was the deceased (a) Dr. R.N. Madan.

treated during his last illness by and other Medical practitioners or in any hospital before you were consulted?

If so, please state their names and addresses.

8. In her examination-in-chief she states that entries in this form, (Ex. D-6), have been made from the record of Lady Harding Hospital which had been supplied to her.

9. One Mr Syed. Shafiuddin had been summoned to produce the records of Lady Harding Hospital. He has categorically deposed that the records would not be available since the records were kept for five years only and not more. He has categorically stated that he knew that records, for more than five years, were not maintained by the Hospital. He has also stated that since the inception this hospital has not been examining male patient over the age of 12 except the staff members. As this witness was so deposing i.e. that records were not maintained for more than five years, in examination-in-chief itself he was shown Exhibits. D-5 and D-6. To be remembered that according to Dr. Padmawati Exs. D-5 and D-6 were prepared on basis of records of Lady Harding Hospital. Also to be noted Exs. D-5 and D-6 had been prepared more than 5 years after 29th May, 1959 and 25th September, 1959 i.e. the dates on which Shri Dharam Pal Puri is supposed to have been xamined in the hospital. The witness then states that it is possible that Dr. Padmawati might have been maintaining records at that time. Thus, it is very clear that the documents Exs.D-5 and D-6 could not have been prepared on the basis of any record of Lady Harding Hospital as by the time Exs. D-5 and D-6 were prepared, the record for the relevant period had already been destroyed. In cross-examination Dr. Padmawati was asked as to whether she had verified the name, address and age of the patient and her answer is peculiar. She says that she verified the name, address and age of the patient in the document Ex D-6 from the deceased himself. To be remembered that the man had died on 5th August, 1964. She is writing the document in December, 1964. It is clear that she could not have verified the name and age of the patient from the deceased. All this makes it clear that there was some confusion in the mind of Dr. Padmawati. There appears to be some mistaken identity. It must also be remembered that the evidence on record is that the male patient would not be examined in this hospital and yet she claims that she had examined him in this hospital. It must be remembered that the deceased was admittedly not a member of the staff of the hospital. In our view therefore, not much reliance can be placed upon the evidence of Dr.Padmawati. The learned single Judge has seriously erred in placing strong reliance upon her evidence.

10. The other doctors on whose evidence reliance is placed, are two doctors working in Sir Ganga Ram Hospital during 1964. These were doctors who had examined the deceased when he was admitted on 4th August 1964 in the hospital. The first is Dr. Santok Singh. His examination has taken place on commission. In his cross-examination he deposes that he had joined the hospital in 1963 and stayed there till March, 1965. He is asked whether two medical certificates, which are marked Exs. B2 and B3, were signed by him. He admits to have signed these certificates. However, when asked whether the two certificates were correctly written or not, in the examination-in-chief, he states that it is not possible for him to make any comment as Dr. V.K. Dewan was physician in charge. He further states that entry in this certificates were probably made by him from the hospital record. He then goes on to say that without checking the hospital record it is not at all possible for him to say whether these certificates show the correct treatment as given in the hospital. He admits, in the examination-in-chief, that the deceased had not stated the medical history to him as the patient was unconscious. He admits, in the examination-in-chief, that he cannot say whether the deceased knew about his illness. These certificates issued by this doctor have been strongly relied upon. Relevant portion of the certificate reads as follows:-

"Past history

Had a similar attack of Hemiplegia one year ago (1963) Frequent attacks of cough, sore throat, dyspne on exertion oedema lower limbs off and since 7 1/2 years."

11. Reliance is placed upon this by the Respondent and it is submitted that this shows that the deceased had a similar attack even one year ago in 1963 and yet had not disclosed these facts. It is also submitted that the deceased had also attack of cough, sore throat, dyspne on exertion oedema lower limbs since 7 1/2 years and had not disclosed these facts. However, during cross-examination another certificate also issued by the same doctor is shown to him. Relevant portion of this certificate reads as follows:-

"Had an episode of dypnoes weakness, pain chest, slight perspiration since today morning followed by right sided Hemophilia cannot move right half of the body and also cannot speak since today morning. Past History: sore throat, oedema lowerlimbs, cough with slight expectoration off and on since 1 1/2 years."

12. Thus, it is to be seen that the episode of dypnoes and hemophilia are on the date when the patient is admitted in the hospital i.e. 4th August, 1964. The past history is only of sore throat with slight expectoration off and on since 1 1/2 years. Since the two certificates issued by the same doctor were contrary to each other, the doctor was asked to explain. Faced with this situation he says that without looking at the original record he could not say whether the entries in the certificates had been correctly made. Thus, he himself is resiling from the certificate which has been issued by him. The certificates which had been issued by him are Exs. P2 and P3. Thus, the doctor himself has stated in the evidence that he cannot state whether these entries have been correctly made. If it is so then this evidence is also of not much use.

13. Next evidence is of one Dr. V.K. Dewan. He has also examined the patient for the first time only after he was admitted into the hospital on 4th August 1964. This doctor states that during that period he was working in Sir Ganga Ram Hospital. He admits to have been signed Ex. D-7. He states that the contents of the documents are correct. He states that the information mentioned in this document is derived from the hospital record. The hospital record from which this information is derived would have be Exs. P2 and P3 mentioned above. Ex. D-7 is the form which has been filled in by this doctor. In Column 5(d), it is mentioned that the patient was suffering from Paralysis and unconsciousness. Column 7(a), (b) and (c) deal with the history of the patient and from where the history has been got by the doctor. Against these columns, he says "does not apply". In Column 5 he gives the cause of death as "cerebral embalism mitral stenosis with amicu-

lar fibrillation". He goes on to say that the patient has been suffering from this decease for the last 5-7 years. The doctor is, therefore, asked as to the source of his information in column No. 5. His answer is that the source of his information was physical examination of the patient which would have been only in August, 1964. Then he goes on to say that he checked up the history of the patient from "him, myself". Therefore, he claims to have got the history of the patient from the patient. Admittedly the patient was in unconscious condition. Thus, this evidence is also not of much use.

14. On the basis of such evidence the Respondent Insurance Company is seeking to refute liability under the insurance policies. This is the evidence which has found favour with the learned Single Judge. In our view the above mentioned evidence is entirely worthless and no reliance can be placed on this evidence. There is positive evidence on record to show that the Respondent's case is not correct. The Respondents have themselves led evidence of doctors who had examined Shri Dharam Pal Puri before the insurance policies were issued. Those doctors have filled in "forms" as required and signed those documents as being correct. Respondents have examined one Dr. Raj Narain Rohtagi. He is one of the panel doctors of LIC. It has not been claimed that this doctor had colluded or connived with the deceased or his family members. This doctor has deposed that the deceased has signed the personal statement and the proposal form in his presence. He has stated that after verification he had found that answers to various questions had been correctly recorded. He had stated that answers were recorded after examining the deceased Shri Dharam Pal Puri. In the cross-examination , he has stated after examining Shri Dharam Pal Puri he found him to be medically fit to be insured. He started that he took half an hour in examining the deceased and the examination included asking questions, receiving answers as well as physical examination also. This doctor has also given a confidential report which is Ex. D-4. One of the items to be filled this confidential report is the condition of heart. In item No. 6, the doctor has filled in that the condition of the heart was normal, pulse rate was normal and blood pressure wan normal blood vessels were healthy and an instrument called trtameter was used to test the patient.

15. The other witness was Dr. Kartar Singh. He also deposes that the statements made by the deceased in his personal statement were answered by the deceased in his presence. He also states that he had also submitted a confidential report which was based on his examination of the deceased. He states in the cross-examination that on examination of the deceased he had found him fit for being insured. The confidential report is Ex. DW4/2. In this form also column 6 deals with the condition of heart. This doctor also states that the condition of heart is normal, blood vessel is healthy and pulse rate and blood pressure are normal. This report is given on 15.7.1964.

16. Thus, it is to be seen that evidence of these two doctors of the Respondent establishes that before the policies were taken, Shri Dharam Pal Puri was examined by two panel doctors of the Respondent. This examination was not just on basis of questions and answers. Shri Dharam Pal Puri was also physically examined. These doctors found him to be normal and fit to be insured.

17. Reliance is placed by the Respondent upon the authority in the case of Mithoolal Vs. Life Insurance Corpn. of India, . Based on this, it is submitted that even though their own doctor may have given the reports, still the Respondents were entitled to repudiate the policies because wrong statements had been made by the deceased as he had fraudulently suppressed the fact that he had been suffering from heart disease. It is submitted that as false statement had been made even though their own doctors had given the above mentioned report, yet the Insurance Company was entitled to repudiate the policy. To the general proposition that if a false statement on a material particular has been made, the policy can be repudiated, there can be no dispute.However, it is to be seen that in this case the Respondents have not been able to establish that the deceased was in fact suffering from any heart disease prior to August, 1964. As stated above, the evidence of the three doctors who started by stating that there was a history of heart disease gets completely destroyed. There is no evidence to show that Shri Dharam Pal Puri had any history of heart disease.Thus Respondents have not been able to establish that the deceased had made any false statement. On the contrary, the report of then own panel doctors who have examined Shri Dharam Pal Puri have said that the condition of the heart was good. This would show that the deceased had no made any false statement.

18. Reliance was also placed upon the case of P. Sarojam Vs. LIC of India, . It has been held in this case that a contract of insurance is uberrima fides and the person seeking insurance is bound to disclose all material facts relating to the risk involved in the policy of insurance. There can be no dispute about this proposition. In this case the only suppression of material fact which has been claimed as that the deceased had been suffering from a heart disease and that he had suppresses that fact. This has not been established.

19. Faced with this the above situation, during submission before us, it was submitted that the certificate Ex. As well as certificate Ex. D disclosed that the disease was suffering from sore throat and cough. It was submitted that even if Ex. D was taken to be the correct certificate. It showed that he had been suffering from sore throat and cough for the last 1 1/2 year. It was submitted that last two policies had been taken out on 10th March, 1964 and 15th June, 1964. It was submitted that these two policies were within period of one year. It was submitted that in the personal statement against column No. 7B, he was supposed to state whether he was having persistent cough and yet the deceased had answered "No". It was submitted that this was a false statement made by the deceased. It was submitted that the respondent were therefore entitled to repudiate the policies on the basis of this false statement. We see no substance in this submission. First of all the policy had not been repudiated on the ground of any false statement having been made in clause 7(b) of the personal statement Letter of repudiation is Ex. DW8/1 (also Exhibited as PW1/9). The repudiation is on the ground that the following question had been answered falsely:

PERSONAL STATEMENT Questions. Answers.

4(d) Have you consulted a medical practitioner within the last five years? If so, give details. No.

7. Have you ever suffered from any of the following ailments?

(c) Fainting attacks, pain in chest, Breathless, palpitation or any disease of the heart? No.

(k) Any other illness within the last five years requiring treatment for more than a week. No.

We may, however, state that all these answers were false as we hold indisputable proof to show that the deceased assured had suffered inter alia from Mitral Stenosis with Auricular fibrillation for which he had taken treatment from a doctor prior to the dates of insurance. He did not however, disclose these facts in his personal statements. Instead he gave false answers therein as stated above."

20. Thus it has to be seen that repudiation is only on the ground that the deceased had been suffering from heart ailment had not been disclosed. This was the stand which had taken even in the written statement. Neither in the initial repudiation nor in the pleadings there is any case that there was mis-statement in respect of column 7B of the personal statement. This is a case being taken up by the counsel, for the first time during the arguments today. Undoubtedly this is being argued as counsel finds that the case with which the Respondent had come to the Court was not sustainable. Such a fresh case cannot be allowed to be taken up at this stage in Appeal. Even otherwise it is to be seen that non-disclosure must be of a material particular. It must be respect of something which has connection with the ultimate demise. Even if the deceased had been suffering from cough, his death was not a result of that cough or any complication arising from cough. His death was on account of heart attack.

21. For reasons set out above, in our view the Respondents have made out no case for not honouring their commitment under the insurance policies. In our view, the judgments of the learned Single Judge is not sustainable, requires to be and is set aside. In our view, on the evidence which is available before the Court the Issues would have to be answered as follows :

Issue No.1

In the affirmative.

Even though the Appellant may not be assignee, she is admittedly the nominee and is entitled to the amount under the policies.

In the negative.

In these circumstances and for the above reasons, we allow this Appeal. The impugned judgment is set aside and the Suit is decreed in terms of prayers: (i) .As regards prayer (ii) and (iii) we grant interest @ 12% p.a. on the sum of Rs. 85,000/- from the date of death till payment of realization thereof. Cost of the Appeal to be paid by the Respondent to the Appellant.