Future Generali India Life ... vs Kalpanbhai Sureshkumar ...
2022 Latest Caselaw 7025 Guj

      C/SCA/9336/2010                             JUDGMENT DATED: 05/08/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 9336 of 2010

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                  Sd/-
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                           NO

2      To be referred to the Reporter or not ?                        YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                               NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution             NO
       of India or any order made thereunder ?

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       FUTURE GENERALI INDIA LIFE INSURANCE COMPANY LIMITED
                               Versus
          KALPANBHAI SURESHKUMAR ZINZUVADIA & 1 other(s)
================================================================
Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 2
MR HITESH N ACHARYA(2302) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 05/08/2022
                      ORAL JUDGMENT

1. Rule. Learned advocate Mr.Hitesh Acharya waives service of notice of rule for the respondent no.1.

2. The present writ petition has been filed assailing the order dated 26.02.2010 passed by the respondent no.2 in Complaint No.21-018-0344-

010.

3. On 10.12.2010, this Court by way of interim arrangement had directed the petitioner to deposit full claim passed by the Ombudsman in the impugned order within four weeks before the Registry of the High

C/SCA/9336/2010 JUDGMENT DATED: 05/08/2022

Court in a Fixed Deposit carrying simple interest at the rate of 8%. It was further directed that upon such deposit being made, 50% of the amount shall be released in favour of the claimants through account payee cheque on filing an undertaking to the Court giving a bond that such amount will be returned in case the petition is ultimately decided against them.

4. Learned advocate Mr.Hitesh Acharya, on instructions of the respondent, has submitted that the respondent has not withdrawn any amount and full amount is laying with the Registry of this Court.

5. Learned advocate appearing for the petitioner has submitted that the impugned order is required to be quashed and set aside since the deceased life insured (DLA), who is the father of respondent no.1, had obtained the policy suppressing his medical health. It is submitted that since his case was rejected by the petitioner-Company vide communication dated 08.09.2009, the respondent no.1 preferred an application before the Reviewing Committee and the Reviewing Committee vide order dated 03.11.2009 rejected the claim by holding that the insured had concealed the information, which was required to be disclosed at the time of making the application. He has further pointed out the application made by the deceased and has submitted that in the column with regard to his health, he has mentioned as NA (Not Applicable). He has submitted that the deceased insured, who is the father of the respondent no.1, has passed away within a period of 113 days due to heart attack. It is submitted by him that the deceased was suffering from ECG-Mayocardial Infraction and the medical condition was suppressed by the father of the respondent no.1 and hence, the respondent no.2 without appreciating such facts, by the impugned order, has held the

C/SCA/9336/2010 JUDGMENT DATED: 05/08/2022

claim in favour of the respondent no.1. It is submitted that the aforesaid aspects have been ignored by the respondent no.2 while passing the order and hence, the same may be set aside.

6. Per contra, learned advocate Mr.Acharya appearing for the respondent no.1 has submitted that the petitioner did not produce a single documentary evidence with regard to condition of health of his father and hence, the Ombudsman, which is quasi-judicial authority, after hearing the respective parties, has passed the order directing the petitioner to accept the claim of the respondent no.1. It is submitted that in absence of any evidence with regard to condition of health of the father of the respondent no.1, the petitioner could not have rejected the claim.

7. I have heard the learned advocates appearing for the respective parties. The impugned order is also perused by this Court.

8. The genesis of the issue raised in the present writ petition, lies on the sole contention canvassed by the petitioner with regard to adverse medical condition of the deceased insured, who is the father of the respondent no.1. It is the case of the petitioner that the deceased had suppressed his medical condition and after getting himself insured, he passed away within a period of four months due to heart attack. A perusal of the impugned order dated 26.02.2010 passed by the insurance Ombudsman would reveal that the sole evidence, which was produced by the petitioner before the said authority, is a copy of e-mail dated 11.06.2009 sent by one Shri Girish V. Upadhyay of HDFC Prudential Life Insurance Company, which inter alia states that the case of the insured was declined on account of adverse finding in ECG-Myocardial

C/SCA/9336/2010 JUDGMENT DATED: 05/08/2022

Infarction. Except this single assertion, no material or document suggesting the medical condition of the deceased was produced. The Ombudsman has referred to various six documents in his order and it is specifically observed that in absence of the vital information, the reliability of the evidence to repudiate the claim is questionable and there is no record of any treatment given prior to the date on which the deceased was proposed for the insurance.

9. Before this Court also, the petitioners have miserably failed to provide or point out any documentary evidence, which would remotely suggest that deceased suffered from any disease. Merely because the respondent passed away within four months from the date of proposal of the insurance policy, the same would not ipso facto give a cause to the petitioner in denying the claim on the ground that he was suffering from disease, which was suppressed. The petitioner-Company was required to produce relevant, reliable and cogent material with regard to health of the insured and in fact, in absence of any material in this regard, the claim of the respondent could not have been denied.

10. Thus, this Court does not find that the impugned order suffers from any vice of illegality or perversity. Hence, the writ petition fails. Rule is discharged.

11. Registry is directed to disburse the entire amount deposited by the petitioner to the respondent after due verification along with interest.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/4