RSA No.1245 of 2005 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 1245 of 2005 Date of decision: January 14, 2011 Life Insurance Corporation of India .....Appellant Versus Smt.Omi Devi and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.R.Mahajan, Advocate, for the appellant Mr.Y.P.Khullar, Advocate for the respondents **** SABINA, J. Plaintiffs filed a suit for recovery against the Life Insurance Corporation of India basing their claim on Policy No. 470260233 for ` 50,000/-. The policy in question was got issued by Chiman Lal, husband of plaintiff No.1 and father of plaintiffs No. 2 to 4. Chiman Lal died on 12.4.1995 due to heart attack. The claim submitted by the plaintiffs to the defendant was,however, declined. Hence, the suit was filed by the plaintiffs. Defendant in its written statement admitted the issuance of RSA No.1245 of 2005 2 policy of Chiman Lal on 29.2.1995 and death of Chiman lal on 12.4.1995. It was averred that the deceased had suppressed/concealed material fact qua his illness at the time of applying for Insurance Policy. In fact, the deceased was already suffering from cancer when he applied for Insurance Policy and had not disclosed the said fact in the requisite form. The deceased had not died due to heart attack but had died due to cancer. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for recovery of Rs.50,000/-?OPP 2.Whether the plaintiff is entitled for interest at the rate of 12%?OPP 3.Whether the plaint has been properly signed verified and instituted by the authorized person?OPP 4. Whether the suit of the plaintiff is premature?OPD 5.Whether the suit of the plaintiff is not maintainable?OPD 6.Whether the suit of the plaintiff has not been properly valued for the purposes of court fee and jurisdiction?OPD 7.Relief.” The trial Court vide judgment and decree dated 11.6.2004 dismissed the suit filed by the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the same was allowed by the Additional District Judge Amritsar vide judgment and decree dated 24.12.2004 and the suit of the plaintiff for recovery was decreed. Hence, the present appeal by the Insurance Company-defendant. RSA No.1245 of 2005 3 The substantial question of law that arises in this case is as to whether the findings of the learned District Judge are perverse and against the record. Admittedly, Chiman Lal had applied for insurance policy on 28.2.1995. The insurance policy was sought for ` 50,000/-. Chiman Lal died on 12.4.1995. The case of the plaintiffs was that Chiman Lal had died due to heart attack,whereas, the case of the defendant was that Chiman Lal was suffering from cancer and had died due to the said disease. Plaintiffs, in order to prove their case, examined PW1 Rajinder Pal. The said witness deposed that he knew Chiman Lal for the last 20/22 years. Chiman Lal had died due to heart attack on 12.4.1995. Before his death Chiman Lal was not suffering from any ailment. Doctor Sareen had checked the deceased before his death as he has been called by the family members of the deceased. He was also present at that time and the Doctor had disclosed that Chiman Lal had died due to heart attack. PW2 Jagdish Chander deposed that he know deceased Chiman Lal. The deceased was hale and hearty before his death. In April, 1995, 2-3 days prior to his death, Chiman Lal suffered a heart attack and had died due to the said attack. Chiman Lal was not suffering from any ailment like cancer etc. Plaintiff Om Wati, while appearing in the witness box deposed as per contents of the plaint. Defendant, on the other hand, has examined DW1 Satya Chandra Manager of the Company and he deposed as per the contents of the written statement. RSA No.1245 of 2005 4 DW2 Dr.Pawan Bhatia tendered in evidence his affidavit Exhibit DW2/1 wherein he deposed that he was running his hospital in the name of Apollo hospital Bhushanpura Amritsar. He was practicing as consultant and surgeon for the last 15 years. Chiman Lal c/o Sudershan Dairy, Bagh Jallianwala, Amritsar has visited him in January 1995 and as per clinical analysis, the patient was suffering from Malignant Ascites prior to his visit to him in January 1995. He gave the required treatment to the patient and proved Exhibit D6, medical treatment certificate issued by him. The case of the plaintiffs is that the deceased had died due to sudden heart attack. As per PW2, Dr. Sareen was present at the time of death of Chiman Lal and had declared that the deceased had died due to heart attack. PW3 Om Wati has also deposed that Dr. Sareen had been called for treatment after her husband had suffered heart attack. However, the said doctor had not been examined by the plaintiffs to substantiate their plea that the deceased had died due to heart attack. As per PW3 deceased had suffered heart attack on 11.4.1995 and had died at their residence on the next day. Doctor Sareen had been called at her residence for treatment. It is not understandable as to why deceased was not shifted to hospital for treatment after he had suffered a heart attack. Non examination of Dr.Sareen by the plaintiffs is also fatal to the case of the plaintiffs and an adverse inference is liable to be drawn against the plaintiffs. The said witness was very material to establish that deceased had died due to heart attack. There is no medical evidence to support the plea of the plaitniffs that deceased had died due to heart attack. This aspect has been ignored by the learned District Judge while allowing RSA No.1245 of 2005 5 the appeal filed by the plaintiffs. On the other hand, defendant has examined PW2 Dr. Pawan Bhatia. The said doctor is not on the panel of Insurance Company and had no reason to falsely depose against the plaintiffs. The said doctor has categorically deposed that he had been giving treatment to Chiman Lal qua Malignanat Ascites from January 1995 onwards. When the patient came to him in January, 1995, he was already suffering from the said disease. The fact that the doctor has disclosed the age of the patient as 60 years,whereas, he was, in fact 45 years old itself is not sufficient to discard the testimony of DW2. The address of the patient had been correctly given by the doctor. The statement of DW2 could not be, thus, brushed aside, especially, when there is no medical evidence available on record to the fact that the deceased had died due to heart attack. The deceased when he applied for the policy had stated that he was not under any treatment. Column No.4 of Exhibit PX/2 reads as under:- 4.Ascertain from the life to be assured whether at any time in the past he/she i)has been hosptialised? ii)was involved in an accident? iii)has undergone any Radiological,Cardiological Pathological or any other tests? iv)Is currently under any treatment? No No No No Thus, the insurer had denied that he was currently under any treatment. The deceased died on 12.4.1995, whereas, he had applied for the policy on 28.2.1995. The deceased had concealed the material fact qua his disease from the Company at the time of applying for the Insurance Policy. In these circumstances, the RSA No.1245 of 2005 6 Insurance Company could not be held liable to pay the insurance amount in question to the plaintiffs. Although it is a sad case where the bread earner of the family has died but the Insurance Company cannot be burdened with the amount and they are not legally liable to pay. The learned District Judge while reversing the judgment and decree passed by the trial Court has based its conclusion on irrelevant consideration and the finding of the learned District Judge are perverse and against the evidence on record. The substantial question of law stands answered accordingly. Hence, this appeal is allowed. The impugned judgment and decree passed by the learned District Judge are set aside. Consequently, the suit filed by the plaintiffs is dismissed. ( Sabina ) Judge January 14, 2011 arya