1. This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 02.02.2011 of the State Commission in appeal no. 150 of 2010 arising out of the Order dated 29.12.2009 of the District Commission in complaint no. 100 of 2005.

2. We have heard the learned counsel for the insurance co. (the petitioner herein) and for the complainant (the respondent herein) and have perused the record including inter alia the Order dated 29.12.2009 of the District Commission, the impugned Order dated 02.02.2011 of the State Commission and the petition.  

3. Briefly, four (04) life insurance policies had been taken by the wife of the complainant. She died on 07.02.2005. Two (02) policies were settled in favour of the complainant nominee. The remaining two (02) policies, which are the subject herein, were repudiated by the insurance co. principally on ground of concealment of material facts regarding health condition.

The District Commission allowed the complaint and directed the insurance co. to pay the insured amount of Rs. 4.90 lakh with admissible benefits relating to one subject policy and the insured amount of Rs. 2.00 lakh with admissible benefits relating to the second subject policy with interest at the rate of 9% per annum from the date of repudiation of the claim(s) i.e. 03.08.2005 till realization along with Rs. 5,000/- as cost of litigation.

The State Commission dismissed the insurance co.’s appeal.

As such this revision has been preferred apropos concurrent findings of the two fora below.

4. Learned counsel for the complainant submits that the fora below have made their independent appraisal and ruled in favour of the complainant. The insurance co. is now unnecessarily agitating further in revision before this Commission. The original record of the two (02) policies in question has been reported to be misplaced / lost by the insurance co. The submission is that the two fora below have already marshalled and sifted the available evidence, yet the insurance co. has now come before this Commission without any material in support. Learned counsel draws specific attention towards the below-quoted extracts from the respective appraisal made by the District Commission and the State Commission.

Extracts from the District Commission’s Order dated 29.12.2009:

On the basis of above consideration the conclusion of this forum is that the respondent insurance company by committing their negligent acts misplaced the insurance policies, proposal forms and policy bond of the insurance policies related to deceased Nahid Mobin Kidwai w/o the complainant and have committed deficiency in service. And on the basis of wrong and baseless grounds by denying the death claim forms produced by the complainant ignored their liabilities. The complainant is found to receive the insured amount of Rs.4,90,000.00 related to policy No. 215314870 and entire bonus on this insurance and insured amount of  Rs. 2,00,000.00 and related to entire bonus of policy No. 215309302 with interest of 9% per annum from the date of refusal of claim till realization from the respondent. In such manner, the complaint of the complainant has force and same is found liable to be allowed.

Extracts from the State Commission’s Order dated 02.02.2011:

The negligence of the appellant is also proved from this fact that original record of the insurance policies misplaced from their office and after that what action was taken by corporation about guilty employees, in this regard any evidence is not produced by the appellant.

5. Learned counsel for the insurance co. fairly admits that the original record has been misplaced / lost by the insurance co. He also fairly admits that no inquiry was conducted to fix accountability and no steps were taken to inculcate systemic improvements for future.

6. The issues being agitated relate principally to concealment of material facts regarding the health condition of the insured at the time of taking the subject policies. Admittedly proposal forms were filled up and the insured underwent a medical examination by the insurance co.’s own designated doctor. We however note that the original record of the subject policies, including the proposal forms and the documentation and report of medical examination conducted by the insurance co.’s designated doctor, have all been reported to have been misplaced / lost. The two fora below i.e. the District Commission and the State Commission have thus been deprived of the opportunity to have examined and made their respective appraisal of the genuineness and authenticity of essential material documents.

Admittedly two (02) policies in respect of the same insured and the same nominee have been allowed by the insurance co. but the remaining two (02) policies i.e. the subject policies herein have been disallowed. The premiums had been duly paid. The policies were valid. The death of the insured was not disputed. No suspicious circumstances surrounded the death. Though concealment of material facts relating to health condition has been taken as the principal ground for repudiation the original record at the end of the insurance co. including the proposal form and the medical examination report of its own designated doctor has been reportedly misplaced / lost.

The two fora below have made their respective appraisal and have given concurrent findings in favour of the complainant nominee.  

7. Learned counsel for the insurance co. dwells on affirmations made in the proposal form and raises questions on the identity of the person who undertook the medical examination conducted by the insurance co.’s designated doctor.

The learned counsel is however unable to explain the basis on which these contentions can be conclusively established when the original record relating thereto is itself statedly misplaced / lost at the end of the insurance co. Nor is the learned counsel able to explain to our satisfaction the position regarding the nature and source of the record (in whichever way and in whichever manner it may have been available) on the basis of which the insurance co. had framed its written version and filed its evidence before the District Commission (as also subsequently framed its memorandum of appeal for the State Commission and then framed its petition for this Commission).

8. Loss of the original record­­­­, which, in our view, was essential for a court or tribunal to make a basis for appraisal in order to adjudge the authenticity and genuineness of the documents, does not reflect favourably on the insurance co. Nor does the absence of any inquiry to fix responsibility and the absence of any steps to imbibe systemic improvements for future reflect favourably.

As such both the fora below have rightly looked upon the stated loss of original documents with disfavour. They have attempted to evaluate and make sense out of the material as was made available and on making their independent appraisal reached the same conclusion i.e. the findings of ‘deficiency’ on the part of the insurance co.

The learned counsel has been fair enough to admit when confronted that no inquiry or steps have been taken by the insurance co. to fix responsibility on the delinquent officials who may have been culpable of misplacing the record, which may even have been a deliberate act in the overall circumstances of the instant case. In fact, the circumstances, as they emerge from the perusal of the record and specifically the perusal of the pleadings and the judgments of the two fora below, inter alia raise questions on the role and responsibility of officials within the insurance co. itself (as well as on persons without the organisation) in respect of such loss of record and such disregard and disinclination to inquire or take steps for accountability and improvements. In the absence of the original record, and in the absence of any inquiry by the insurance co., and in the absence of clarity regarding the nature and source of the record (in whichever way and whichever manner available) on the basis of which the insurance co. is agitating the matter, we do not find it feasible or worthwhile to delve deeper into this issue while in revisional jurisdiction after concurrent findings of the two fora below.

Suffice is to say that the findings arrived at by the two fora below, for respective reasons, recorded independently, do not call for any interference, and we do not see any good ground to reprove the impugned Order passed at the second consecutive level below (the State Commission), the evidence, as was available before the fora below, has been marshalled, and considered, and the facts & circumstances and specificities weighed as best possible, and there are too many unanswered questions at the end of the insurance co.

9. The present revision fails and stands dismissed.

10. At this stage, learned counsel for the insurance co. submits and requests that if the claims of the insured are being upheld in respect of the 02 subject policies in question herein and the contentions raised on behalf of the insurance co. are not finding favour with this Commission, then in the peculiar facts & circumstances and specificities of this particular case it may be ordered that the decision in this case will not be considered to be a precedent.

11.     We find that the submission has been made by the learned counsel in fairness and in propriety. Having regard to the peculiar facts & circumstances and specificities of this present case, we deem it proper to observe that the decision in this case shall not be treated as a precedent.

12. The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.