Civil Writ Petition No. 20040 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 20040 of 2008
Date of Decision: December 17, 2008
Max New York Life Insurance Co. Ltd. ............ Petitioner
versus
Insurance Ombudsman, Chandigarh and another ............. Respondents
CORAM
HON'BLE MR.JUSTICE HEMANT GUPTA.
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3.Whether the judgment should be reported in the Digest ?
-.-
Present: Ms. Vandanaa Malhotra, Advocate for the petitioner
HEMANT GUPTA, J.
The challenge in the present petition is to the order passed by
the Insurance Ombudsman, Chandigarh, on 05.08.2008, Annexure P-1,
whereby the complaint filed by respondent No.2 was allowed and finding
was given that insurance claim is payable by the petitioner.
Smt. Harjinder Kaur, wife of respondent No.2, was insured by
the appellant with the date of commencement of the policy as 22.11.2007.
Smt. Harjinder Kaur died on 07.01.2008 but the claim lodged by respondent
No.2 was repudiated on the ground that the insured was suffering from
hypertension for the last 10 years but such information was not disclosed. It
was the claim of respondent No.2 that his wife was not having any medical
problem and her death was sudden.
Civil Writ Petition No. 20040 of 2008 [2]
The stand of the petitioner is that in the proposal form, the
insured has categorically stated that she was not suffering from any
hypertension or high blood pressure, whereas, as per attending physician
statement, Annexure P-8, the insured was suffering from hypertension for
the last 10 years and, thus, the insured having withheld the material
information in respect of hypertension, the petitioner has rightly repudiated
the claim.
The learned Insurance Ombudsman has found that though the
doctor has stated that the insured was suffering from hypertension for the
last 10 years, but there is no documentary proof or any other documentary
record to support this statement. A clarification was sought from Dayanand
Medical College, Ludhiana, the place of death of the insured. The summary
of the record was produced wherein it is mentioned that the patient is
suffering from hypertension for the last ten years but no supporting
document could be furnished to substantiate the statement regarding the
patient suffering from hypertension for ten years. On the basis of the
hospital treatment certificate, learned Insurance Ombudsman recorded a
finding that the insured had difficulty in swallowing and breathlessness but
there is no record to the effect that the insured disclosed that she was
suffering from hypertension for the last 10 years. Thus, it could not be
substantiated on record that the insured was suffering from hypertension for
10 years.
Learned counsel for the petitioner has vehemently argued that
the petitioner has not disclosed the factum of hypertension which was an
important fact. In the absence of non disclosure of such material fact,
learned Insurance Ombudsman has committed grave illegality in allowing
Civil Writ Petition No. 20040 of 2008 [3]
the claim. It has been further pointed out that the cause of death is SLE i.e.,
Systematic Lupus Ertymtosis including stiffness of all joints groups, redness
and pain.
As per physician statement, the physician was consulted for the
first time on 02.01.2008 with complaint of difficulty in swallowing and
breathlessness. The patient was diagnosed for SLE after admission. In the
hospital treatment certificate, it has been mentioned that difficulty in
swallowing and breathlessness for three days was reported by the patient
herself and that diagnose was confirmed after admission.
Thus, the finding recorded by the Insurance Ombudsman that
there is no medical history of the patient having suffered from hypertension
for the last 10 years is not supported by any record. Except the note in the
physician statement that the patient was suffering from hypertension for the
last 10 years, there is no record of any medicine having been taken by the
insured or any treatment taken from any hospital or a physician prior to the
said date. A Division Bench of this Court in Life Insurance Corporation
of India vs. Permanent Lok Adalat and another, CWP No. 9738 of
2008 decided on 17.10.2008 has relied upon the judgment of a Division
Bench of Patna High Court in case reported as Rattan Lal and another vs.
Metropolitan Insurance Company Limited, AIR 1959 Patna 413
wherein it was held that the duty to disclose is limited to the facts within the
knowledge of the assured, a mistaken statement about a material fact made
honestly, that is, with belief in its truth, will not affect the validity of the
contract. Relying upon decision of a Division Bench of Madras High Court
in All India General Insurance Co., Ltd., and another vs. S.P.
Maheshwari, AIR 1960 Madras 484, it was found that answers to
Civil Writ Petition No. 20040 of 2008 [4]
questions are representations and a false representation will not operate to
vitiate the contract or avoid the policy unless the fact is actually material or
clearly intended to be made material by the agreement between the parties.
The insurer can avoid the policy only by proving that the statement is false
or fraudulent or that it was false and material to the risk.
In the present case, there is no proof of the insured having been
suffering from hypertension for a period of 10 years and assuming it to be
so, hypertension is a disease which can escape attention of a person and is
required to be diagnosed by experts.
In view of the above, we do not find that order dated
05.08.2008, Annexure P-1, passed by the Insurance Ombudsman is illegal
and unwarranted in any manner. Consequently, present writ petition is
dismissed.
(Hemant Gupta)
Judge
December 17, 2008 (Augustine George Masih)
ks Judge