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LPA/832/2000 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 832 of 2000
In
FIRST
APPEAL No. 12 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
LIFE
INSURANCE CORPORATION OF INDIA - Appellant
Versus
HANSABEN
CHANDRAKANT SHETH & 1 - Respondents
=================================================
Appearance :
MR
HM BHAGAT for Appellant:
MR NIRAV C THAKKAR for Respondent:
1,
RULE SERVED for Respondent:
2,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 23/11/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arise against the judgment & order dated 7/2/2000
passed by learned Single Judge of this Court in First Appeal No. 12
of 2000, whereby the judgment & decree of the Civil Court in
Special Civil Suit No. 30 of 1997 for directing Life Insurance
Corporation (hereinafter referred to as LIC for convenience)
to pay amount of insurance of Rs.1,00,000/- with interest was
confirmed.
The
relevant facts appear to be that the policy of Kalpesh Chandrakant
Sheth (hereinafter referred to as the ‘deceased/insured’) was got
insured by his father Chandrakant Dalichand Sheth for a sum of
Rs.1,00,000/-. The declaration was filed at the relevant point of
time and the insured was also examined by the panel doctor of LIC,
who recommended for the proposal. The policy appears to have been
taken on 25/1/1993, and it continued for a period exceeding two
years. It appears that, insured expired on 15/10/1995, and
thereafter the claim was submitted on account of death of the
insured. The claim came to be repudiated by LIC by contending that
the disease of kidney was not disclosed at the time when policy was
taken, and therefore, the claim was not honoured. Parents of
deceased insured filed civil suit being Special Civil Suit No. 30 of
1997 in the Civil Court for recovery of amount of Rs.1,00,000/- from
the defendant LIC. Ultimately at the end of the trial, learned Civil
Judge passed the judgment & decree on 21/9/1999 directing the
LIC to pay amount of Rs.1,00,000/- with the interest at the rate of
12% per annum from the due date, till realisation of the amount.
Being aggrieved by the said judgment & decree of the Civil
Court, the appeal came to be preferred before this Court being First
Appeal No. 12 of 2000. Learned Single Judge having found no
infirmity in the findings arrived at by the trial court did not
interfere with the judgment & decree of the trial court, and
consequently dismissed the appeal. It is under these circumstances
present appeal before us.
We
have considered the judgment & decree passed by learned trial
Judge, and also the judgment & order passed by learned Single
Judge in First Appeal, as well as the record & proceedings which
was called for from the trial court. We have heard Mr. Amit P.
Patel, learned counsel for Mr. H.M. Bhagat for the appellant/
original appellant-defendant and Mr. Nirav Thakkar, learned counsel
for the respondents/original respondents-plaintiffs.
Learned
counsel for the appellant first contended that there was clear
suppression of material fact, in as much as, prior to the death the
insured had got his treatment before the Kidney Hospital at Nadiad
and at that time in the history column it was declared that he had
kidney problem 5 years back, i.e. prior to the issuance of policy
and he submitted that said aspect was required to be disclosed
before the panel doctor, which was not disclosed and therefore, it
can be said to be suppression of material fact, and on the basis of
which LIC was justified in repudiating the contract. He submitted
that said aspect has neither been properly appreciated by the Civil
Court nor thereafter by learned Single Judge of this Court, hence
the appeal be allowed only on that ground.
The
examination of the aforesaid contention and upon close scrutiny, it
appears that the question wherein disclosure was required to be made
was as to whether the insured had any kidney disease and the answer
given was ‘No’. Another relevant question was as to whether the
patient had undergone the treatment for a period exceeding one week
in last 5 years and the answer given was ‘No’. In this light of the
fact situation the matter is to be examined as to whether such could
be said to be suppression of material fact or not.
On
behalf of LIC, Branch Manager Shri Dilipbhai Iswarji Bhayani (PW-1)
Exhibit-48 was examined, and in his deposition he had referred to
hospital papers of Nadiad Kidney Hospital. Further, the
appellant-original defendant also examined Dr. Bhavik Hiralal
Shelat (PW-2) Exhibit-50, who had prepared the case papers of the
insured and he was admitted for treatment in the said hospital on
6/9/1995. The History of the deceased does refer to sickness 5 years
back, but in the deposition of Dr. Shelat he had stated that, upon
inquiry from the patient it was found that some particles of blood
was found in the urine and some particles of protein was also found
in the urine about 5 years back prior to 1995 and he had taken
treatment of steroid.
In
the decision of the Apex Court in case of P.C. CHACKO AND ANOTHER
Vs. CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA AND OTHERS,
reported in (2008) 1 SCC, pg. 321, the Apex Court while considering
the aspect of truthfulness of the question-answer has extracted some
observations of Madras High Court at para-19, and the relevant of
which can be extracted here for the present matter as under.
The
principles underlying the doctrine of disclosure and the rule of good
faith oblige the proposer to answer every question put to him with
complete honesty. Honesty implies truthfulness. But it happens
that no man can do more than say what he believes to be the truth.
Therefore,
it will have to be considered as to whether the answers were
honestly given or not with truthfulness. If, at one point of time
some blood particles were found in the urine or the protein
particles were found in the urine and thereafter treatment is taken
and is cured, one would not in normal circumstance carry an
impression of having kidney disease at an age of about 15 years.
Further, it has not been stated by Dr. Shelat even in the medical
history papers that the patient had undergone treatment for a period
exceeding one week or atleast for one week as was required to be
disclosed at the time of proposal. Under these circumstances, it is
not possible to believe that the answers given were not with any
truthfulness or there was any suppression by the insured or on
behalf of the insured at the time when the proposal was submitted.
Apart
from the above, it also deserves to be recorded that the burden in
case of repudiation of contract of insurance would be heavily upon
the insurance company and the reason being that the presumption
would be that the proposal was genuine, more particularly when
through the panel doctor of the insurance company the insured was
examined and nothing adverse was found. Even at the time when a
person was examined by panel doctor of the insurance company,
nothing prevented him to get medically examined either by test of
blood or otherwise if prima facie he found that such examination was
required. It required to be hardly stated that, with the development
of medical science blood test report for renal function may disclose
the major ailment in the kidney, if any. But in the present case
same has neither been advised by the doctor nor such examination was
undergone. Further, if the repudiation was to be asserted by
maintaining suppression of material fact, it was also required for
the insurance company to prove that such blood particle or the
protein particle found in the urine at any point of time resulted
into kidney disease to the deceased. No such opinion has come on
record of the expert on the said aspects. Under these circumstances,
it is not possible for us to agree with the contention of learned
counsel for the appellant that the burden of proof required for
repudiation of contract for alleging suppression of material fact
was satisfactorily discharged by the appellant insurance company.
If,
in view of the aforesaid, the suppression of material fact was not
proved, the ground of repudiation of contract would not be available
to the insurance company by way of defence, nor could be accepted.
The
aforesaid is also coupled with the statutory provision of Section 45
of the LIC Act, which provides that the policy would not be put in
question after expiry of a period of 2 years. It is an admitted
position that the period of 2 years had expired and death of the
insured was on 15/10/1995 i.e. after the expiry of period of 2 years
on 24/1/1995.
In
view of the aforesaid observations and discussions, we find that
even if the contention of learned counsel for the appellant /
original appellant-defendant is examined, it would not carry the
case of the appellant to maintain repudiation of the contract.
In
view of the aforesaid, we find that the judgment & decree of the
Civil Court, and its confirmation thereof by learned Single Judge of
this Court in the appellate jurisdiction does not deserve to be
interfered with. Hence the appeal is meritless, therefore, same is
dismissed. Considering the facts & circumstances of the case, no
order as to cost. Record & proceedings may be returned to the
trial Court.
[
JAYANT PATEL, J ]
[
S.R. BRAHMBHATT, J ]
/vgn
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