HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.No. 2703 of 2001 Date : 21-06-2010 Between: Life Insurance Corporation of India, Branch Hanamkonda ……… Appellant and Saleemunnisa Begum ………. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.No. 2703 of 2001 JUDGMENT: This Appeal is directed against the Judgment and Decree, dated 27-07-2001 passed in O.S.No.78 of 1997 on the file of the Senior Civil Judge at Warangal. The parties will be referred to as they are arrayed in the suit for the sake of convenience. 2. The brief facts of the case are as follows: The plaintiff was the wife one M.A. Aziz (hereinafter referred to as ‘assured’). The assured had taken a life insurance policy bearing No.680203398 for Rs.2,50,000/- from the defendant-Insurance Company. On the date of policy, the assured was aged about 42 years and according to the information furnished by him, he was hale and healthy. It appears that the assured was subjected to certain medical tests and after duly certifying that he was entitled for taking insurance policy, the policy was issued, which commenced from 10-12-1988 with maturity date 10-12-2003. The assured was paying half yearly instalments and there is no dispute about the same. Subsequently, the assured died due to heart attack on 09-06-1991. The plaintiff, being the nominee of the assured, made a claim for the insurance amount along with the death certificate, dated 20-06-1991, on 27-06-1991 and reiterated the same on 17-06-1992. Initially the defendant-Insurance Company replied that the claim is under investigation, but thereafter, by letter, dated 06-08-1993, informed the plaintiff that her claim was repudiated on the ground that the assured had suppressed the material facts with regard to his health conditions. The plaintiff had again sent a requisition to review the decision of the insurance company in the central and zonal offices. The defendant-Insurance Company, having verified the claim, rejected the Application of the plaintiff to review their earlier order. Then the plaintiff filed CD No.266 of 1995 on the file of the District Consumer Forum, Warangal and the District Consumer Forum dismissed the CD and thereafter the plaintiff preferred an Appeal before the State Consumer Forum and also filed the present suit for recovery of a sum of Rs.4,21,316-66 ps with future interest @ 18% per annum on Rs.2,50,000/- from the date of suit till the date of realization with costs against the defendant-Insurance Company. 3. The case of the plaintiff is that before taking the insurance policy, her husband was examined by a doctor who was on the panel of the defendant-Insurance Company and after the said doctor gave his opinion about the health of her husband, the defendant-Insurance Company issued policy in his favour. Thus the specific case of the plaintiff is that there was no suppression of any material facts and therefore, the defendant-Insurance Company cannot repudiate her claim. 4. The specific case of the defendant-Insurance Company is that the claim of the plaintiff was got investigated through one T. Rama Rao and the report of the said Rama Rao shows that the assured was suffering from cornic disease Acute Myocordio Infraction since about five years prior to obtaining the policy and that he was operated in M.G.M. Hospital, Warangal on 13-08-1995 vide case sheet No.15948 in the cardiology unit and that the Superintendent of M.G.M. Hospital, Warangal addressed letters, dated 23-02-1993 and 13-05-1993 to the defendant- Insurance Company stating that the assured was admitted as inpatient in M.G.M. Hospital and that his case was diagnosed as Acute Myocordio Infraction. Thus the main contention of the defendant-Insurance Company is that the assured had given false information about his health condition by suppressing the fact that he was admitted in M.G.M. Hospital, Warangal. It is also the contention of the defendant- Insurance Company that though the assured was examined by a medical officer, who was on its panel, it was obligatory on the part of the assured to give full history about his previous ill-health in the proposal form and since the assured did not give the history of his previous ill-health, the doctor on their panel was mislead, and therefore, since the assured has given false information, they are entitled to repudiate the claim under the policy. 5. In order to prove her case, the plaintiff herself was examined as PW-1 and got marked Exs.A-1 to A-13. On behalf of the defendant-Insurance Company, DW-1 was examined and Exs.B-1 to B-15 were marked. The lower Court framed necessary issues and after considering the oral and documentary evidence, decreed the suit as prayed for. Being aggrieved by the same, the defendant-Insurance Company preferred the present Appeal. 6. The main contention of the learned counsel for the defendant-Insurance Company is that the letters furnished by the authorities of M.G.M. Hospital clinchingly establish that the assured was admitted in their hospital at Warangal in Cardiology unit as inpatient vide case sheet No.15948 and it is clear that the assured has suppressed the material facts and information while taking the insurance policy and therefore, the defendant-Insurance Company was justified in repudiating the claim. 7. Sri I. Aga Reddy, learned counsel for the respondent- plaintiff, submits that whether there was any suppression of material fact or not has to be provided as a fact, once the plaintiff has denied the averments of the defendant-Insurance Company. He further submitted that though some correspondence was filed by the defendant-Insurance Company, the concerned doctors, who are alleged to have treated the assured in M.G.M. Hospital, Warangal, have not been examined and it is only the internal correspondence between the hospital and the Insurance Company and that once the plaintiff has denied the contention of the defendant that there was suppression of material facts by the assured, it is obligatory on the part of the defendant-Insurance Company to adduce necessary evidence by examining concerned doctors and by marking relevant documents and absolutely there is no evidence in this case to prove the contention of the defendant-Insurance Company. It is also his submission that under Section 45 of the Insurance Act, 1938, no policy can be questioned on the ground of misstatement after two years after the date of commencement of the policy, unless it is proved that there was suppression of facts and the policy holder knowingly gave false misstatement and therefore, the lower Court rightly appreciated the evidence and decreed the suit and there are no grounds to interfere with the same and the Appeal is liable to be dismissed. 8. In the light of the rival contentions, the only point that arises for consideration is whether there was any suppression of material facts by the assured on the date of taking policy? 9. The sum and substance of the case of the plaintiff is that the assured had taken the policy and that he was aged about 42 years keeping good health and that a medical officer on behalf of the defendant-Insurance Company had examined him and certified that he was entitled for taking insurance policy. It is not in dispute that the insurance policy commenced from 10-12-1988 and it was in force till 10-12-2003. It is also not in dispute that the assured died on 09-06-1991 and the plaintiff, wife of the assured, made a claim on 26-06-1991 and 15-06-1992 along with the death certificate of the assured. On 17-06-1992, the defendant- Insurance Company sent a reply that the claim was under investigation. However, on 06-06-1993, the defendant-Insurance Company sent letter to the plaintiff repudiating her claim mainly on the ground that the deceased was suffering with Acute Myocordio Infraction since five years and that he had suppressed the material facts while taking the insurance policy. 10. Now it has to be seen whether the assured was admitted in M.G.M. Hospital, Warangal and whether he was suffering from the chronic disease Acute Myocordio Infraction? 11. Admittedly no doctor from M.G.M. Hospital, Warangal, has been examined. On behalf of the defendant-Insurance Company one T. Rama Rao was appointed as Investigating Officer and the defendant-Insurance Company failed to examine even the said Investigating Officer, who submitted his report in Ex.B-14, dated 30-06- 1993. Ex.B-14, Report, reveals that the said Investigating Officer had addressed letters to M.G.M. Hospital authorities along with Ex.B-1 form to issue case sheet of the assured and that the case sheet was not traced by them. But finally through Ex.B-7, letter, dated 13-05-1993, the M.G.M. Hospital authorities intimated that the assured was admitted in their hospital on 13-08-1985 and as per the index card, the diagnosis was Acute Myocordio Infraction. His report further reveals that the assured was a regular patient of Dr. Gani, Appel Hospital, Warangal and that since the said Gani died, he could not get any information and no records were available in the said hospital. When the Investigating Officer is not examined and when no doctor from M.G.M. Hospital has been examined, it has to be held that the defendant-Insurance Company failed to prove its case. Mere pleadings in civil suit are not sufficient. The parties have to prove their pleadings by adducing necessary oral and documentary evidence. The evidence must be direct evidence. Hearsay evidence is inadmissible and whatever has been stated by the Investigating Officer in Ex.D-14 cannot be treated as evidence. Therefore, it is clear that the defendant-Insurance Company has failed to prove their case and the lower Court rightly decreed the suit. 12. The learned counsel for the defendant-Insurance Company submitted that awarding interest @ 18% per annum from the date of suit till the date of realization is on higher side and therefore, it may be reduced. 13. The learned counsel for the plaintiff submits that the deceased died on 09-06-1991 and that the plaintiff had claimed interest @ 12 % from the date of death of the assured. However, no interest was awarded to the plaintiff from the date of death of the assured or at least from the date of claim of the plaintiff, and it was awarded only from the date of suit. Therefore, for a considerable long period of about five years eight months, no interest was awarded to the plaintiff and if the rate of interest is reduced, the plaintiff will be put to heavy loss. 14. Having regard to the facts and circumstances, I am not inclined to interfere with the order of awarding interest also. 15. The Appeal Suit is accordingly, dismissed. No order as to costs. ___________________ B. CHANDRA KUMAR, J Date: 21-06-2010 YCR