RSA No.4509 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4509 of 2009 (O & M) Date of Decision: 08.02.2011 Life Insurance Corporation of India ……Appellant Versus Joginder Kaur and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. R. Mahajan, Advocate for the appellant. Mr. Balbir Singh, Advocate for the respondents. L.N. MITTAL, J (ORAL) Life Insurance Corporation of India (LIC) has filed the instant second appeal. Suit was filed by respondents/plaintiffs-Joginder Kaur etc., who are legal heirs i.e widow, sons and daughters of Gurdial Singh since deceased. The suit was filed against Branch Manager, Divisional Manager and Junior Manager of LIC, but the instant appeal has been preferred by LIC. Gurdial Singh was insured with appellant-LIC for Rs.1,00,000/- vide life insurance policy dated 15.03.2003 issued pursuant to proposal dated 14.03.2003 submitted by the deceased. Gurdial Singh died on 22.10.2004. Plaintiffs staked claim with the defendants for the insurance amount of Rs.1,00,000/-. Defendants repudiated the said claim. Consequently, the plaintiff filed suit for mandatory injunction directing the defendants to pay the insurance amount of the policy to the plaintiffs along with interest at the rate of RSA No.4509 of 2009 (O & M) - 2 - 12% per annum with effect from 22.10.2004, the date of death of the deceased, till recovery. Defendants while admitting the factum of insurance policy inter alia pleaded that claim of the plaintiffs has been rightly repudiated because the insured made false statement in the proposal form by mentioning that he was not suffering from diabetes and other diseases, but in fact he was suffering from Diabetes Type-II since the year 2001. On account of non-disclosure of the said fact in the proposal form, the defendants rightly repudiated the claim of the plaintiff. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 09.06.2006 decreed the plaintiff’s suit directing the defendants to pay insurance policy amount to the plaintiffs along with interest at the rate of 6% per annum till recovery. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Ludhiana vide judgment and decree dated 06.05.2009. Feeling aggrieved, instant second appeal has been filed by LIC. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that suit for mandatory injunction is not maintainable and suit for recovery should have been filed. This contention is redundant because the trial Court directed the plaintiffs to pay ad valorem Court fee treating the suit as suit for recovery. RSA No.4509 of 2009 (O & M) - 3 - Learned counsel for the appellant contended that claim of the plaintiffs was rightly repudiated because the deceased insured had made false statement in the proposal form by concealing that he was suffering from Diabetes Type-II. The contention cannot be accepted. Defendants have miserably failed to substantiate their aforesaid plea. Defendants examined Dr. Geeti Puri Arora DW-2 from Deep Hospital, who proved form Ex.DW-2/1 obtained by defendants after death of the deceased. According to aforesaid form Ex.DW-2/1, the deceased was admitted in Deep Hospital on 13.06.2004 and he gave history of Diabetes Type-II for the last two years. However, this evidence is not sufficient to prove the defendants’ version. In column No.5(b) of Ex.DW-2/1, it has been mentioned that the history was given by the patient. However, this column has been filled in with different ink that the ink used in filling other columns in the form except columns No.7(c) and (d). Consequently, it cannot be said that the aforesaid history had been given by patient Gurdial Singh. Moreover, he was admitted in the hospital on account of heart attack and consequently at that time, he possibly could not be in a position to tell the exact period of the Diabetes he was allegedly suffering from. Thirdly, Geeti Puri Arora did not bring any record of the hospital to depict that the patient Gurdial Singh had in fact given any such history or to depict that any such history had been recorded in the record of the hospital. Fourthly, Dr. Geeti Puri Arora admitted that the said history was given to Dr. Ramandeep and not to her. However, Dr. Ramandeep has not been examined by the defendants. Consequently, plaintiffs had no opportunity to test the veracity of contents of form Ex.DW-2/1 in the absence of record of Deep Hospital and in the absence of RSA No.4509 of 2009 (O & M) - 4 - examination of Ramandeep as witness by defendants. Adverse inference also arises against the defendants for withholding the said available material evidence. Moreover, in the absence of said primary or basic evidence, evidence of form Ex.DW-2/1 prepared on the basis of hospital record cannot be relied on to uphold the version of the defendants. There is concurrent finding recorded by both the Courts below that there was no concealment of disease Diabetes by the insured. There is no cogent evidence on record to depict that the deceased was suffering from Diabetes when he submitted proposal form for obtaining the life insurance policy. Finding recorded by both the Courts below in favour of the plaintiffs is fully justified by the evidence on record and is supported by cogent reasons. The defendants have miserably failed to substantiate their version of non- disclosure of the alleged disease. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Finding of the Courts below does not suffer from any illegality or perversity so as to warrant interference in second appeal. Resultantly I find no merit in this second appeal which is accordingly dismissed. However, the Courts below have not specified since when the interest would be payable. It is, therefore, clarified that the interest shall be payable from the date of filing of the suit. (L. N. MITTAL) JUDGE 08.02.2011 A.kaundal