1.       This order shall dispose of both the revision petitions since both revision petitions are between the same parties and relate to the same incident. However, different revision petitions are filed because the claim was under two insurance policies Nos.01906983 and 01906950 both dated 28.6.2010 for a sum of Rs.5 lakhs each.

2.       The present revision petitions are filed against the order dated 27.4.2016 whereby the appeal Nos.2307 and 2308 of 2012 of the petitioner against the order dated 27.7.2012 in CC/376/2011 & CC/378/2011 of the respondent/complainant (hereinafter called “the complainant”) were dismissed.

3.       The brief facts of the case are that Shri Rakesh Kumar Aggarwal, the insured was admitted in the hospital for his injuries received in an accident of falling down from the stairs and he died in the hospital. Since his death was due to the accident, as per the terms and conditions of the policy, the complainant, nominee of the insured, submitted his claim before the insurance company. The petitioner repudiated the claim on the ground that insured was suffering from diseases which he had concealed while buying the policy. The plea of the complainant was that the insured was not suffering from any disease at the time of taking the policy and he was also medically examined at that time.

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4.       Notice was sent to the petitioner, which was received back by the District Forum with the refusal report. District Forum took note of the due service and proceeded with the trial of the case. Complainant led his evidence. After perusing the record and hearing the arguments of the complainant, the District Forum reached to the conclusion that the insured had died in the accident and therefore the repudiation on the ground as mentioned in the repudiation letter amounted to deficiency in service. It issued following directions: -

“18.  Taking into consideration all the above facts and circumstances of the case, the complaint is admitted partially. The opposite party is directed upon receipt of the copy of the order the opposite party will make payment of Rs.5 lakh under the above stated policy No.01906983 within 30 days. Taking into consideration all the facts of the case Rs.5000/- is granted on account of mental agony and Rs.5000/- is granted on account of litigation cost, which has to be paid by the opposite party within 30 days from receipt of the copy of order. Copy of order may be made available to the parties as per rule. File is consigned to the record room.”

5.       Before the State Commission the petitioner raised the issue that the summon had never reached to the insurance company and that it had been wrongly proceeded ex-parte and that the complainant had obtained a false report prepared in connivance. On merit it was submitted that the insured was suffering from diabetes and other diseases and this fact was concealed and that the repudiation letter had not been considered in its correct perspective by the

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 District Forum and also that there was no record before the District Forum that the insured had died in the accident since the deceased was brought with nose bleed and there was nothing to show that he received injuries in accident. Alongwith their appeals, the petitioner had also filed certain documents showing his admission in Pushpanjali Hospital on 11.9.2010 and the treatment underwent by the insured.

6.       After perusing all the documents filed for the first time by the petitioner before the State Commission, the State Commission held as under: -

“As far the service of notice of the Appellant insurance company for presenting their reply is concerned it is mentioned in the judgment that the notice was sent through registered post and the officials of the insurance company refused to accept the notice.  Thus the notice was considered to be served.  There is no reason found that why the official of the post office will write the fact of refusal on the envelop.  The Appellant has not provided any clarification in this regard in the appeal.

It is pertinent to note that the policy in question was issued on 28.06.2010 without any objection.  Appellant has attached the treatment sheet of the Pushpanjali Hospital and Research Centre, Agra alongwith the Appeal memo.  Though the statement of the complainant is that his father was not admitted for treatment at Pushapanjali Hospital and Research Centre, thus even if it is admitted that the father of the complainant was admitted at Pushpanjali Hospital and Research Centre, Agra then from perusal of the documents it comes out that a person named Rakesh Kumar was admitted on 11.09.2010 in the Hospital.  From this it is certain that the patient was admitted to the Pushpanjali Hospital before the date of issuance of the policy i.e. 28.06.2010.  The advocate of the Appellant has argued that in this the fact is mentioned that

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 the patient was suffering from diabetic nephropathy and was on Haemodyalasis for last one year.  It is pertinent to note that the Appellant has not submitted any document which is before the date of issuance of the policy i.e. 28.06.2010 or before the filing up of the proposal form.  There is no documents produced with respect to the policy holder being on dialysis for last one year.  There is no clarification to the effect that on what basis the fact mentioned in the document case summary of Pushpanjali Hospital and Research Centre, Agra has been mentioned.

The complainant has relied upon the judgments of Hon’ble National Commission in Surender Kaur and Ors. Vs. LIC of India, II   (2005) CPJ 32 (NC) and the judgment passed by Hon’ble National Commission in Revision Petition No. 2021/2009 LIC of India Vs. Smt. Chawli Devi.  I have perused the judgments.  Hon’ble National Commission has termed the repudiation unjustified only on the basis of the medical history written in the treatment papers.

In these circumstances in our opinion the Ld. District Forum has passed the just and reasonable order while taking into account the facts and circumstances of the case.  Thus the appeal is not acceptable.  Thus the appeal is justified and the judgment of the Ld. District Forum is confirmed.

ORDER

          Present appeal is dismissed. The order of Ld. District Forum in CC No. 378/2011 dated 27.062012 is affirmed.

          There is no order as to the cost of litigation.

          Both the parties may be supplied the copy of order as per the rule.

7.       This order is impugned before us. Same contentions as raised before the State Commission have been raised before us. Although it is argued that the report  of  the  summons  sent  by  the  District  Forum  had  been  obtained in

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connivance, however, it is not disclosed either before us or before the State Commission in appeal as to with whom the complainant had connived.

8.       Under the law, there is a presumption, which of course is rebuttable that if a process/notice is sent at the correct address, it shall be presumed to have been served on the addressee at that address. It is not the case of the petitioner that the address on the notice sent by the District Forum was not correct. If the notice was sent at the correct address and even if it is not received back, there is a legal presumption that it must have reached to the addressee. When a summon is sent and received with a report of refusal, it is proved that the process did reach at the addressee and the addressee had refused to receive it. Here in this situation it is not a presumption of service rather refusal to receive is a proof of service. We found no illegality in the order of the District Forum proceeding ex-parte. It is apparent that the petitioner chose not to contest the claim of the complainant. The petitioner did not present any defence before the District Forum and the District Forum passed its order on the basis of documents filed and presented and proved by the petitioner. Before the State Commission the petitioner had filed on record certain medical reports of the insured. State Commission has rightly held that the admission of the insured in the hospital is subsequent to the issuance of the policy and therefore it cannot be said that the insured had concealed the factum of his admission in the hospital at the time of

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taking the policy. It is argued by learned counsel for the petitioner that in the medical record on the basis of information given by the insured, the Doctor had mentioned that insured was suffering from diabetic nephropathy and was on hemodialysis for the last one year and this fact is sufficient to prove that he was suffering from grave diseases at the time of taking the policy and concealed it.

9.       The burden to prove this fact is upon the petitioner. He did not raise any defence before the District Forum. Even before the State Commission where he filed the additional evidence he did not file any admission record or treatment record of the insured prior to the date of taking policy. Mere mention of this fact by the doctor is not sufficient unless it is so prove by either examining the witness or producing the document showing such treatment by the insured. Even otherwise there was no defence of the petitioner before the District Forum and hence the complainant did not have any chance to rebut the same before the District Forum. State Commission has rightly concluded that this was not sufficient to prove any concealment of fact. Also the insured was medically examined by the petitioner at the time of issuing the policy. Also it is a fact that the insured had not died due to any illness but he suffered injuries in an accident (fall from stairs) for which he was admitted in the hospital and subsequently expired. His death summary which has been produced before the District Forum in evidence clearly states the events relating to his death and it is due to injuries.

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 Bleeding from his nose or ears was found to be due to the injuries he received in the accident. Therefore there is no nexus between the disease for which the insured was allegedly suffering and the cause of death.

10.     Learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned order. The jurisdiction of this Commission is limited under Section 21 (b) of the Consumer Protection Act, 1986. It is not required, to re-appreciate or reassess the evidence on record. This Commission can only when the petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice. Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269  has held as under: -

“13.  Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

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11.     Same principle has been reiterated by Hon’ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon’ble Supreme Court has held as under:

“23. The  National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

12.     From the above discussion it is apparent that the revision petitions have no merit and the same are dismissed.

13.     It is requested by learned counsel for the petitioner that the petitioner had deposited 50% of the decretal amount and requests that the said amount be released to the petitioner. Learned counsel for the complainant, however, submits that in view of this order whereby the revision petitions have been dismissed, that amount shall be ordered to be released to the complainant towards partial satisfaction of the decree.

14.     Subject to any appeal of this order/stay of this order, the said amount is hereby ordered to be released to the complainant towards partial satisfaction of

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the decree. For the balance amount the complainant can file the execution petition if the decree is not satisfied by the petitioner.