# Smt. Tarannum Khatoon v. Branch Manager, L.I.C. of India Ghazipur and others

- **Citation:** (2011) 2 ILRA 953
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-20
- **Case number:** Civil Misc. Writ Petition No. 40027 of 2009
- **Bench:** Ashok Bhushan, Bharati Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tarannum-khatoon-v-branch-manager-l-i-c-of-india-ghazipur-and-others-42026
- **Pages:** 8

## Headnote

Constitution
of
India
Article
226Insurance
Policy-petitioner's
husband
taken (triple cover) endorsement planclaim devoid on ground before taking
policy her husband was suffering from
serious disease but canceling it got
insured-no material produced in support
of such allegation-held-impugned orderset-a-side-pay entire amount within 4
weeks with interest.

Held: Para 22

The aforesaid two judgements relied
upon
by
learned
counsel
for
the
petitioner support the submissions of the
petitioner's counsel. We are satisfied
that there was no material before the
Corporation to record a finding that the
deceased has concealed any disease or
any treatment which he underwent
before taking of the proposal and the
rejection of the claim in such facts and
circumstances is totally arbitrary and
unjust.
The
deceased
died
on
6th
September,

## Text

2 All] Smt. Tarannum Khatoon V. Branch Manager, L.I.C. of India Ghazipur and others

953
not contemplated in the relevant procedure
prescribed by the University obviously
made it difficult for them to qualify since
they may not compete with young and
youngest new employees having better
qualifications. But one must also have
considered that they at the fag end of
service to their credit, have long experience.
Better honour and respect needed so that
they may retire from a higher post after
getting at least one promotion at the fag end
of their service. The University must have
all these facts and other relevant aspects in
mind when laid down the procedure in the
Manual, but unfortunately the Board of
Examiners acted unmindful of wider
aspects. The acted wholly illegally by
ignoring the established procedure laid
down in the Rules and on the contrary
settled their own selection procedure by
exceeding their authority and jurisdiction.

56. In the result, the writ petition is
allowed. Impugned orders dated 5.6.2007
and
2.7.2007
and
appointments
of
respondents 3 to 16 on Class IV posts are
hereby quashed.

57. The University is directed to hold
fresh selection for promotion to the post of
Class III against the vacancies for which
selection was held by notification dated
17.12.2005
and
complete
the
same
expeditiously and in any case, within three
months from the date of production of
certified copy of this order strictly in
accordance with Rules and in the light of
observations made above.

58. Petitioners are entitled to costs
which I quantify to Rs. 50,000/-.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE BHARATI SAPRU,J.

Civil Misc. Writ Petition No. 40027 of 2009

Smt. Tarannum Khatoon
 ...Petitioner
Versus
Branch Manager, L.I.C. of India Ghazipur
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Gautam

Counsel for the Respondents:
Sri R.C. Shukla
S.C.

Constitution
of
India
Article
226Insurance
Policy-petitioner's
husband
taken (triple cover) endorsement planclaim devoid on ground before taking
policy her husband was suffering from
serious disease but canceling it got
insured-no material produced in support
of such allegation-held-impugned orderset-a-side-pay entire amount within 4
weeks with interest.

Held: Para 22

The aforesaid two judgements relied
upon
by
learned
counsel
for
the
petitioner support the submissions of the
petitioner's counsel. We are satisfied
that there was no material before the
Corporation to record a finding that the
deceased has concealed any disease or
any treatment which he underwent
before taking of the proposal and the
rejection of the claim in such facts and
circumstances is totally arbitrary and
unjust.
The
deceased
died
on
6th
September,
2007.
Four
years
have
passed from the aforesaid date and his
widow has been waiting for the benefit
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

of the policy for last more than four
years.
Case law disussed:
Smt. Maya Tripathi Vs. Sr. Divisional Manager,
L.I.C. and Another decided on 10th July, 2003;
Shanta Bai alias Basanta Devi Vs. Life
Insurance Corporation of India and others in
writ petition no.26862 of 2002 decided on 21st
August, 2003; Sushila Devi Vs. Life Insurance
Corporation of India in writ petition no.39028
of 2002, decided on 15th March, 2007; AIR
1962 SC 814; 2007(1) AWC 487; 2006(2) AWC
1295; 2007 (1) AWC 487

(Delivered by Hon'ble Ashok Bhushan,J.)

1. Heard learned counsel for the
petitioner and Sri R.C. Shukla, learned
counsel appearing for the respondents no.
1, 2 and 3. Counter and rejoinder
affidavits have been exchanged between
the parties. We propose to dispose of the
matter finally.

2. By this writ petition, the
petitioner has prayed for quashing of the
orders dated 1st May, 2008, passed by
Senior
Divisional
Manager,
Life
Insurance Corporation, Varanasi and
order dated 19th May, 2009, passed by
Regional Manager, Kanpur (here-in-after
referred to as 'Corporation'). By the order
dated 1st May, 2008 the Senior Divisional
Manager of the Corporation rejected the
petitioner's claim under the insurance
policy taken by Late Shahid Khan,
husband of the petitioner. Subsequently
order dated 19th May, 2009 was passed
by
the
Regional
Manager
of
the
Corporation rejecting the petitioner's
representation, which was disposed of in
pursuance of an earlier order of this Court
dated 13th April, 2009 passed in writ
petition no.63982 of 2008.

3. The petitioner's case in the instant
writ petition is that the petitioner is
widow of Late Shahid Khan. Shahid Khan
took a L.I.C. policy on 21st September,
2006, namely, "Jeevan Mitra (Triple
cover) endowment plan with profit (with
accident benefits)" for an amount of
Rs.1,00,000/= for a period of 15 years.
The petitioner's case is that at the time of
taking the policy, the petitioner's husband
was healthy and there was no complaint
of any ailment or any disease. The
Corporation also prepared the medical
examination confidential report and on
being found the petitioner's husband
healthy, the policy bond was issued. The
petitioner's husband subsequently died in
Bhabhuwa Sadar Hospital, Bihar in the
custody of police on 6th September, 2007.
The petitioner being nominee of the
aforesaid policy made an application for
claim under the policy. The said claim
was rejected by the order dated 1st May,
2008. The reason given with the rejection
of the claim was that petitioner's husband
was suffering from Kidney disease and
anaemia much prior of taking of the
policy, which was not disclosed at the
time of taking the policy. The order also
mentions that if the petitioner is not
satisfied, she can submit a representation
to the Regional Manager. The petitioner
submitted a representation to the Regional
Manager challenging the rejection of the
claim and also came to this Court by
filing a writ petition being writ petition
no.63982 of 2008, which was disposed of
directing the Regional Manager to decide
the
matter.
The
Regional
Manager
rejected the claim again approving the
earlier decision. The Regional manager
observed in the order that the petitioner
was suffering from Kidney disease prior
of taking L.I.C. Policy.

4. Learned counsel for the petitioner
challenging the orders impugned in the
2 All] Smt. Tarannum Khatoon V. Branch Manager, L.I.C. of India Ghazipur and others

955
instant petition contends that the decision
of the Corporation rejecting the claim is
an arbitrary decision. The petitioner's
husband at the time of taking the policy
was medically examined by the Doctor of
Corporation and was found not suffering
from any disease. It is further submitted
that at the time of death, the petitioner's
husband was only 33 years of age and the
rejection of the claim was totally
arbitrary.

5. Sri R.C. Shukla, learned counsel
for
the
respondents
refuting
the
submissions made by learned counsel for
the petitioner contended that after the
death
of
petitioner's
husband,
the
Corporation
had
conducted
an
investigation and came to know that
petitioner's husband took treatment in Sar
Sundar
Lal
Hospital,
Kashi
Hindu
Vishwavidyalaya (In short "BHU") in
July, 2007 and also obtained opinion of
the private Doctor on 17th February, 2008
and the Corporation was satisfied that he
was suffering from Kidney disease much
before taking of the policy and thus the
Corporation is perfectly right in rejecting
the claim of the petitioner. Sri Shukla
further submits that even if the petitioner's
husband was suffering from any disease
or ailment after taking the policy, he
ought to have informed the Corporation
about the disease. Sri Shukla has also
placed reliance on three judgements of
this Court as well as on one judgement of
the Apex Court, which shall be referred to
while considering the submissions in
detail.

6. Learned counsel for the petitioner
has
also
placed
reliance
on
two
judgements of this Court.

7. We have heard learned counsel
for the parties and perused the records.

8. There is no dispute that the policy
was taken by the petitioner's husband on
21st September, 2006 and at the time of
taking of the policy, he was also
medically examined by the Doctors of the
Corporation and no disease was noted in
the report. The copy of proposal of policy
has been annexed as Annexure-'1' to the
writ petition, which also indicate the age
of other family members, including the
date of birth of the petitioner's husband.
At the time of taking the L.I.C. Policy, the
deceased was 33 years and his date of
birth was 20th July, 1973. The age of his
mother and father was also mentioned as
60 and 61 years, respectively.

9. The claim was submitted that
petitioner's
husband
died
on
6th
September, 2007 at Sadar Hospital,
Bhabhuwa, Bihar on account of anaemia
and Cardiac arrest. The rejection of the
claim has been made on the ground that
petitioner's husband was suffering from
kidney disease and anaemia since before
taking of the policy, which was not
disclosed by him, hence her claim is
rejected.

10. A counter affidavit has been
filed by the Corporation in the instant writ
petition in which the Corporation has
placed
reliance
specially
on
three
materials; firstly, the medical prescription
(Outdoor) of BHU dated 11th August,
2007 and secondly the medical opinion
obtained by the Corporation from its own
private doctor dated 17th July, 2008,
which is annexed as Annexure-CA-4 to
the counter affidavit and the Post Mortam
report. The opinion given by the doctor of
the Corporation dated 17th July, 2008 was
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

obtained after the death of the patient
allegedly on the basis of OPD slips of
BHU. The OPD slips, which have been
annexed by the respondents, only says
that the petitioner's husband was treated
on 11th August, 2007 and thereafter on
the advise of the hospital various
medicines and tests have been prescribed.
The OPD slips, Annexure CA-1 to the
counter affidavit does not suggest or
record any medical history suggesting that
deceased was suffering from kidney
disease or anaemia since last five years as
has been opined by Doctor of Corporation
in his certificate dated 7th July, 2007.
The slips, which have been filed as
Annexure CA-'1' to the counter affidavit
(at page 25) suggest that patient was
examined on 20.08.2007, complain of
Nausea and vomiting as well as weakness
and dizziness was noted for last 20 days.
There can not be any dispute that a person
who takes an insurance policy, if he is
aware of any disease from which he is
suffering which is serious in nature, he
ought to have disclosed the same at the
time of taking the insurance policy/cover.
In the present case, the respondents have
filed in the counter affidavit the medical
prescription dated 11th August, 2007 i.e.
the treatment under which the deceased
went after 10 months of taking the
insurance
policy
and
the
medial
prescription does not even suggest about
the medical history or any disease of
which the petitioner's husband was
suffering from years.

11. We fail to appreciate the opinion
obtained by the Corporation by his own
doctor, which was obtained on 17th
February, 2008 much after the death of
the deceased that he was suffering from
"Chronic Renal Failure". The relevant
portion of the said opinion of doctor is
quoted below :-

"As per OPD slip of I.M.S. BHU
dated 20.8.07 shows that LA was a known
case of CRF ( Chronic Renal Failure).
Chronic Renal Failure takes about
minimum five years to develop. Means LA
suffering with this problem for last about
five years."

12. The petitioner in her claim
submitted to the LIC has claimed that the
deceased has died due to anaemia and
Cardiac arrest. There is no material to
support the view taken by the private
doctor dated 17th February, 2008, that
there was a case of Chronic Renal Failure.
In the counter affidavit or materials
brought on the record, there is no material
to suggest that petitioner's husband took
any treatment prior to taking the insurance
policy or it was known to him that he was
suffering from any disease. The insurance
cover was taken by a person who was 33
years of age.

13. The respondents-Corporation
has also placed reliance on the Post
Mortam report, which has been filed as
Annexure-CA-2. Although Post Mortam
report mentions death due to severe
anaemia
and
non-functional
Kidney
leading to cardiac arrest, but the said Post
Mortam report can not be basis of any
finding or conclusion that the deceased
was suffering from any Kidney disease at
the time of taking policy bond.

14. Learned counsel for the
respondents-Corporation
has
placed
reliance of Division Bench Judgement in
the case of Smt. Maya Tripathi Vs. Sr.
Divisional Manager, L.I.C. and Another
decided on 10th July, 2003 in writ
2 All] Smt. Tarannum Khatoon V. Branch Manager, L.I.C. of India Ghazipur and others

957
petition no.36904 of 1991, where the
Division Bench has upheld the order of
the Corporation rejecting the claim. The
reason given by the Division Bench in the
said judgement for rejecting the claim
clearly explain the reason for rejection of
the claim. It is useful to quote the
following observation made by the
Division Bench :-

"No doubt, the discharge certificate
was issued in the year 1987, while the
husband of the petitioner took the policy
in the year 1985, but we are of the view
that the petitioner was suffering from
serious ailments prior to taking the policy
in the year 1985. thus, inference can be
drawn from the discharge certificate
(annexure C.A.III) itself. It is a common
knowledge that when a person has an
ailment, he first goes to a local doctor. It
is only much later that the person
ordinarily goes to All India Institute of
Medical Science, New Delhi, when the
treatment of the local doctor fails. Thus
this fact is undisputed that the petitioner
had been suffering for six years as stated
in the aforesaid discharge certificate
(annexure C.A.III)."

15. From the aforesaid, it is clear
that there was material in the said case of
Smt. Maya Tripathi that the deceased was
suffering from the serious disease for last
six years. There can not be any dispute to
the proposition that non disclosure of
known disease entail the rejection of
claim by the insurance Corporation. Thus,
the said judgement also does not help the
respondents in the present case. Another
judgement relied upon by the respondents'
counsel in the case of Shanta Bai alias
Basanta
Devi
Vs.
Life
Insurance
Corporation of India and others in writ
petition no.26862 of 2002 decided on 21st
August, 2003. In the aforesaid case the
deceased took policy in the year 1998.
The insurance claim was rejected in the
investigation which was carried on by the
Corporation, it was found that the
deceased was hospitalised from 18th May,
1998 to 3rd June, 1998, which fact was
never disclosed in the proposal form. On
the aforesaid facts, the action of the
Corporation was upheld. In the aforesaid
judgement, the Division Bench has
observed as under :-

"A perusal of the impugned order
dated 25.11.2000 (Annexure-10 to the
petition) shows that the petitioner's
husband was hospitalized from 18.5.1998
to 3.6.1998 in the North Eastern Railway
Hospital, Allahabad. In the policy form
when a specific query was made whether
during the proceeding 5 years the
applicant suffered from an illness due to
which he had to get treatment for more
than one week he replied in the negative
to the query. He also replied in the
negative to the query whether he had to
be hospitalized and that he was absent
from work due to illness. The petitioner's
husband gave false answer to this specific
query also and hence it is evident that he
obtained the policy by misrepresentation.
We are thus satisfied that L.I.C. was
perfectly
justified
in
rejecting
the
petitioner's claim as in our opinion her
husband had obtained the policy by
stating false facts and concealing facts."

16. In the present case, there is no
material referred to or relied in the
counter affidavit, which may suggest that
petitioner's husband took any medical
treatment prior to taking of the policy
bond. In the proposal form the deceased
had answered that he never took any
medical treatment, nor he was ever
958 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

hospitalised. There is no material brought
on the record by the respondents to
indicate that petitioner's husband took any
medical treatment prior to taking of policy
or was ever hospitalised.

17. The another case relied upon by
respondents' counsel in the case of
Sushila
Devi
Vs.
Life
Insurance
Corporation of India in writ petition
no.39028 of 2002, decided on 15th
March, 2007, was a case where the writ
petition was dismissed. There was a
finding recorded by the Division Bench
that the deceased underwent the medical
treatment for months together before
taking the policy. The finding recorded by
the Division Bench is quoted below :-

"On the other hand, Shri Prakash
Padia, learned counsel appearing for the
respondents submits that while filling up
the .....for getting the Insurance Policy
petitioner's husband had furnished wrong
information, particularly, saying that he
had never been ill for a period of one
week, or hospitalised for any ailment for
one week in the last five years; and he
was having very good health. The
respondents conducted an inquiry on the
basis of which they came to know that the
department wherein petitioner's husband
was serving he had taken leave on three
occasions for months together before
taking the said Policies, and therefore, it
was a clear cut case of concealment, and
no interference is required."

18. The judgement which has been
relied upon by learned counsel for the
respondents in the case of Mithoolal
Nayak Vs. LIC of India, reported in AIR
1962 SC, 814, was also a case where the
insured person had been found guilty of
mis-statements and fraudulent suppression
of material information on the basis of
which the Hon'ble Apex Court decided the
case against the insured person. In the said
case, the second proposal was submitted
on 16th July, 1944 and a finding was
recorded that the deceased consulted the
Physician at Jabalpur and was examined
and treated by the said doctor between 7th
September, 1943 and 6th October, 1943.
Thus, there was entire material and basis
for recording the finding that at the time of
proposal and before the taking proposal, he
was treated medically, therefore the said
case is also on its own facts.

19. Learned counsel for the petitioner
has relied upon the judgements in the case
of Smt. Meena Sahu alias Meenu Sahu
Vs. L.I.C. of India and another, reported
in 2006(2) AWC, 1295 and Umeash
Narain Sharma Vs. New India Assurance
Company Ltd. and others, reported in
2007(1) AWC, 487. The Division Bench in
the case of Smt. Meena Sahu has also
considered the case of Mithoolal Nayak,
AIR 1962 SC 814. The following was laid
down in para 10, which reads as under :-

"In the instant case, the proposal form
was not filled in by the deceased in his own
handwriting.
The
deceased
had
no
educational qualification. The deceased
being a man of 36 years was supposed to
be a healthy person. The medical
examiner's confidential report enclosed
with the policy in question reveals that no
sign or symptoms of suffering from any
physical disorder more particularly of
jaundice were found in the medical
examination of life assured by the doctor of
the corporation nor the Life Insurance
Corporation has produced any evidence to
show that three was misrepresentation of
facts which if known earlier would have
stopped the Corporation from issuing the
2 All] Smt. Tarannum Khatoon V. Branch Manager, L.I.C. of India Ghazipur and others

959
policy. The medical examiner of the
Corporation having examined the assured
and
submitted
a
favourable
report
regarding his health, the Life Insurance
Corporation cannot wriggle out of the
contract by saying that it was void or
voidable at its option. It is not a case
where the L.I.C. of India would not have
consented to the contract of the insurance
but for misrepresentation or suppression of
material facts. The facts of the present case
are
distinguishable
from
Mitthoolal
Nayak's case (supra). In the said case the
policyholder had taken policy a few
months before his death. In the present
case there is no evidence that the
policyholder was treated for any serious
ailment short time before the taking of the
policy. The L.I.C. of India, its development
officer and other staff including the
medical practitioner who has examined the
person insured owe a responsibility to the
person to whom they sell insurance and
they are presumed to be acting in the
interest of the Corporation. The L.I.C. of
India cannot disclaim the liability to make
payment of assured amount under life
policy No. 310786680 for the acts and
omissions of its development officer or
medical practitioner appointed by it to
examine the deceased before accepting the
proposal."

20. Another judgement which has
been relied upon by learned counsel for the
petitioner is 2007 (1) AWC, 487 - Umeash
Narain Sharma Vs. New India Assurance
Company Ltd. and others. In the aforesaid
case, Mediclaim Insurance Policy was
taken by the insured. An application was
submitted by the insured of medical
treatment,
which
was
rejected.
The
following was laid down by the Division
Bench in para 17, which reads as under :-

"From a reading of the aforesaid
clause, we find that it will apply to such
diseases which were in existence at the
time of proposing the insurance policy, i.e.,
prior to the effective date of the insurance.
It is the own case of the respondents that
when the fresh policy was issued on
30.1.2001, being Policy No.48/8652 in the
proposal form the petitioner had declared
that there was no pre-existing complaint
regarding his health vide paragraph 7 of
the counter-affidavit filed by Shailendra
Shukla, Deputy Manager, Legal. It is
presumed
that
the
respondents
had
checked and verified all the informations
given in the proposal form by the petitioner
before issuing the mediclaim insurance
policy. Thus, it is no right to say that the
petitioner is known case of CAD since
2000. In the counter-affidavit except for a
bald statement that the petitioner is a
known case of CAD since 2000, neither
any document nor any material has been
brought on record to establish the said
averments. In view of the specific
averments made in paragraph 7 of the
counter-affidavit
filed
by
Shailendra
Shukla on behalf of the respondents, the
stand taken by the respondents for
rejecting the claim cannot be sustained."

21. From the aforesaid materials
brought on record and submissions made
by learned counsel for the parties, we are
satisfied that neither there was any material
with the Corporation to come to the
conclusion that the petitioner's husband
underwent any medical treatment prior to
taking of policy bond or was ever
hospitalised. There being no material
suggesting to the aforesaid, the conclusion
recorded by the Corporation that the
petitioner's husband had concealed the
material facts at the time of proposal is
perverse. The question of concealment of
960 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

fact arises only when a person is said to be
aware of a particular fact. In so far as the
second submission of learned counsel for
the Corporation that even if the petitioner's
husband underwent medical treatment after
taking of the policy, he ought to have
informed the Corporation about the
subsequent treatment, suffice it to say that
no such ground has been taken in the
impugned order rejecting his claim. The
respondents cannot be permitted to add a
new ground for rejection of the claim in
arguments, which has not been mentioned
in the impugned order.

22. The aforesaid two judgements
relied upon by learned counsel for the
petitioner support the submissions of the
petitioner's counsel. We are satisfied that
there
was
no
material
before
the
Corporation to record a finding that the
deceased has concealed any disease or any
treatment which he underwent before
taking of the proposal and the rejection of
the claim in such facts and circumstances
is totally arbitrary and unjust. The
deceased died on 6th September, 2007.
Four years have passed from the aforesaid
date and his widow has been waiting for
the benefit of the policy for last more than
four years.

23. We are of the view that the
Corporation in addition to the amount,
which was entitled to be paid under the
policy, shall also pay the interest at the
Bank rate on the said amount calculating
the same with effect from the date of death
of the deceased. The impugned orders
dated 1st May, 2008 and 19th May, 2009
passed by the respondents are set aside.
The respondents are directed to make the
payment, as directed above, within one
month from the date a copy of this order is
produced before them. The writ petition is
allowed. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 05.08.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.43203 OF 2011

Suresh Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
M/S Suman Sirohi(S.C.)
C.S.C.

Constitution
of
India
Article
226compassionate
appointment-petitioner
on death of his father-offered the post of
constable keeping in view of minimum
age of 21 years-after joining on post of
constable and attaining age of 21 yearsclaimed appointment on post of SubInspector-held-can not be allowed to
claim higher post as a matter of rightreasons disclosed.

Held: Para 10

In view of the above, the law laid down
by the Apex Court and by this Court, it is
settled that once the right to get the
compassionate
appointment
is
exhausted
after
accepting
the
appointment on one post, the person has
no right to claim any higher post on
compassionate appointment.
Case law discussed:
1995 SCC (L&S), 10; (2008) 1 SCC (L&S), 769;
(2009) 2 SCC (L&S), 224; (2007) 2 SCC (L&S),
417