STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

          APPEAL CASE No.A-9/2015

1. Smt. Pranati Ghosh,

W/O,Late Jiban Ghosh.

2. Shri Juwel Ghosh,

S/O Late Jiban Ghosh.

3. Miss. Payel Ghosh,

D/O Late Jiban Ghosh.

All are resident of Aralia, Gopitilla,

Agartala, West Tripura.

                   ….    ….    ….    ….    Appellants.

                   Vs

1. Life Insurance Corporation of India,

Agartala Branch No.1,

Paradise Chowmohani (Hospital Road Extension)

Agartala, West Tripura.

2. Life Insurance Corporation of India,

Silchar Divisional Office,

Jeevan Prakash, Meherpur,

Silchar-15, State of Assam,

(To be represented by its Divisional Manager)

                    ….    ….    ….    ….    Respondents.

PRESENT :

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

              MR. NARAYAN CH. SHARMA,

           MEMBER,

            STATE COMMISSION.

For the Appellants                 :      Mr.B. Saha,Adv. & Mr.S.Paul,Adv

          For the respondents              :      Mr.N.Majumder,Adv.

          Date of Hearing                    :      15.07.2015.

Date of delivery of Judgment  :

J U D G M E N T

S.Baidya,J,

            This appeal filed on 28.03.2015 under Section 15 of the Consumer Protection Act., 1986 by the three appellants is directed against the judgment dated 27.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-99 of 2013 whereby the Ld. District Forum dismissed the complaint filed under Section 12 of the C.P.Act, 1986 being devoid of merit without any order as to costs.      

2. The case of the appellants as narrated in the memo of appeal, in brief, is that one Jiban Ghosh, the deceased husband of the appellant No.1 and the deceased father of the appellant No.2 and 3, purchased service from the respondents by way of insuring his life with the respondents w.e.f. 20.07.2011 at the monthly premium of Rs.353/- and thereafter the respondents issued the policy bearing No.492928909 in favour of the said Jiban Ghosh and the date of maturity of the said policy is 20.07.2029 for an assured sum of Rs.70,000/-. It has also been stated that during the enforcement of the said policy the insured Jiban Ghosh died on 05.03.2012 leaving behind him the present appellants herein as his legal heirs. It has also been stated that the appellant No.1 being the nominee of deceased Jiban Ghosh submitted a statement-cum-death claim along with all relevant documents, but in spite of submission of such claim, the respondents did not make any response for a considerable period. It has also been alleged that the appellants were pursuing the aforesaid claim with the respondents from time to time and at last, vide letter dated 31.01.2013, addressed to the appellant No.1, the respondents expressed their inability to accept the claim and hence the appellants as complainants filed the complaint under Section 12 of the C.P.Act, 1986 before the Ld. District Forum which was registered as C.C.99/2013.                                                  
3. It has also been alleged that the respondents contested the claim by filing written statement and thereafter the Ld. Forum considering the oral and documentary evidences passed the impugned judgment dismissing the said complaint and thereby being aggrieved and dissatisfied with the impugned judgment, the appellant-complainants preferred the instant appeal on the grounds that the Ld. Forum appreciated the evidence which was not on the record in the eye of law and failed to appreciate the evidence on record properly and due to such failure there has been miscarriage of justice, that the Ld. Forum failed to appreciate the settled position of law that the photocopies cannot be treated as admissible evidence and as such cannot be taken into consideration, that the finding of the Ld. Forum is perverse and contrary to evidence on record, that the finding of the Ld. Forum to the effect that the O.Ps did no illegally by repudiating the claim of the complainants and no charge of negligence and deficiency in service are attributable to the O.Ps, is totally perverse, illegal and without any evidence on record, that the Ld. Forum ought to have considered that the O.Ps submitted some photocopies which are nothing, but mere piece of papers and have no evidentiary value at all, though those are marked as exhibits, but subject to objection as those are photocopies, that the Ld. Forum being failed to appreciate the cases of the parties and the evidences on record erroneously passed the impugned judgment which cannot be sustained in the eye of law and therefore, the appellants have preferred the instant appeal praying for setting aside the impugned judgment by way of allowing the complaint filed under Section 12 of the C.P.Act.
4. During the pendency of the appeal, the respondent-Life Insurance Corporation of India filed an application supported by an affidavit under Order 41 Rule 27 of the C.P.C., 1908 read with Section 151 of the said code praying for acceptance and consideration of some documents as additional evidences which, the respondents as O.Ps could not file in the District Forum earlier. It has been stated in the said application that the respondents through R.T.I. Act obtained those documents from the A.G.M.C. & G.B.P.Hospital, Agartala, Govt. of Tripura concerning the medical treatment of the insured Jiban Ghosh since deceased on the grounds that the deceased Jiban Ghosh while submitting the proposal form for the insurance policy suppressed the material fact concerning his condition of health. On the other hand, the appellants objected to that application of the respondents by filing written objection alleging that the respondents have filed the instant application with an ulterior motive just to defeat the claim of the appellant-complainants. It has also been alleged that the filing of the application under Order 41 Rule 27 of the C.P.C. is not permissible before the Consumer Fora under the C.P.Act, 1986. It has also been alleged that there is no scope under Section 15 of the C.P.Act to file any application under Order 41 Rule 27 of the C.P.C. and as such, the application so filed by the respondents during the pendency of this appeal under Order 41 Rule 27 of the C.P.C. being not tenable under the C.P.Act should be rejected outright.               

Points for consideration.

5.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether the judgment under challenge in this appeal should be set aside and (3) whether the application under Order 41 Rule 27 of the C.P.C. so filed by the respondents should be rejected outright as prayed for by the appellants.      

                         Decision with Reasons.

6.       All the three points are taken up together for the sake of convenience and brevity.

7. The learned counsel for the appellants submitted that the respondent-Insurance Company produced photocopies of some documents in the District Forum and the Ld. District Forum accepted those photocopies of medical prescriptions and applications and got the same marked with exhibited number without calling for the original documents and also without summoning the author or the maker of the same as witness to prove the genuineness of said documents. He also submitted that at that time the appellants raised objection and that is why the said photocopies of documents have been marked as Exhibit ‘A’ series, but subject to objection. He also submitted that although the appellant-complainants raised objection for taking those photocopies of documents into evidence, but the Ld. District Forum relied on those documents and passed the impugned judgment, although the authenticity of those documents have not been established. In this regard, the learned counsel for the appellants relying on the decisions reported in AIR 1980 Gauhati 55 and AIR 1971 Supreme Court 1865 submitted that mere marking of a document as an exhibit does not dispense with its proof.     
8. The learned counsel for the appellants also submitted that when the insured Jiban Ghosh submitted proposal form for an insurance policy, it is expected that the respondent-Life Insurance Corporation of India made necessary enquiry regarding the veracity of the statement contained in the said proposal form. He also submitted that the issuance of the insurance policy in favour of the insured Jiban Ghosh established that the respondent-Life Insurance Corporation of India being satisfied regarding the veracity of all the statements contained in the proposal form accepted the same and issued insurance policy in favour of the insured Jiban Ghosh on receipt of the usual premium. He also submitted that after acceptance of the proposal and issuance of the insurance policy in favour of the insured, the insurance company cannot repudiate the just claim of the claimants on the plea that the proposal form so submitted by the insured suffered from alleged suppression of material fact regarding the health- condition of the insured. He also submitted that the Ld. District Forum in the impugned judgment held that the O.Ps did no illegality by repudiating the claim of the complainants which cannot be sustained in the eye of law.
9. The learned counsel for the appellants also submitted that during the pendency of the appeal, the respondents filed an application under Order 41 Rule 27 of the C.P.C. supported by an affidavit along with photocopies of some medical papers in the name of deceased insured Jiban Ghosh in this appeal with a prayer for accepting those documents as additional evidence. He also submitted that the appellants objected to the filing of the said application by filing a written objection. He also submitted that the instant appeal has been filed under Section 15 of the Consumer Protection Act, 1986 which does not provide for affording any opportunity to either of the parties to the appeal for submission of any application under Order 41 Rule 27 of the C.P.C. or for adducing any additional evidence at the appellate stage. He also submitted that the filing of any application under Order 41 Rule 27 of the C.P.C. does not come within the ambit of Section 13(4) of the C.P.Act, 1986 and as such the said application is not entertainable before the Consumer Fora under the C.P.Act and therefore, the application under Order 41 Rule 27 of the C.P.C. is liable to be rejected.
10. The learned counsel for the appellants referring to para-48 of the decision reported in AIR 2010 Supreme Court 1162 submitted that a document becomes inadmissible in evidence unless author thereof is examined, because the contents thereof cannot be held to have been proved unless the author is examined and cross-examined in a Court of law. He also referring to para-7 of the decision reported in AIR 1975 Supreme Court 1748 submitted that according to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. He also submitted that in the District Forum the insurance company did nothing for production of the primary evidence and without complying with the said mandatory provision as per Indian Evidence Act, produced photocopies of some documents and got the same marked with exhibited number and as such, the Ld. District Forum relying on those documents passed the impugned judgment erroneously and therefore, it cannot be sustained in the eye of law and should be set aside.  
11. On the other hand, the learned counsel for the respondents submitted that it is settled principle of law that strict provision of law under the Indian Evidence Act does not require to be followed while deciding a case under the C.P.Act before the Consumer Fora. He also submitted that the documents produced by the parties in connection with any case under the C.P.Act do not require to be proved strictly as provided under the Indian Evidence Act. He also submitted that the list of documents marked with exhibit ‘A’ series contained a number of original documents such as proposal form, insurance policy, survival certificate, certified true copy of death certificate of the insured Jiban Ghosh, claim application for settlement of the claim, certificate of identity and burial cremation, medical attendant’s certificate, certificate of hospital treatment, certificate by employer of the deceased insured, leave record issued by the office of the deceased insured i.e. Tripura Handloom and Handicraft Development Corporation Ltd., leave account of late Jiban Ghosh, deceased insured issued by office of the said insured, letter of repudiation of the claim. He also submitted that the exhibit ‘A’ series contains the photocopies of some leave applications submitted by the insured during his life time, photocopies of some medical prescriptions containing six pages and the photocopies of some other medical examination reports. He also submitted that the medical papers regarding the medical treatment of the deceased insured before purchasing the insurance policy in question are vital for the purpose of deciding the case. He also submitted that out of six photocopies of medical prescriptions four are regarding the medical treatment of the insured after the purchase of the said insurance policy.   
12. The learned counsel for the respondents also submitted that the Ld. District Forum considering the leave statement and leave account of the deceased Jiban Ghosh arrived at the conclusion that the deceased in his proposal form suppressed the material fact concerning his medical treatment before the purchase of the insurance policy in question. He also submitted that as the leave account and leave statement issued by the office of the deceased are in original, the Ld. District Forum rightly admitted the same into evidence as the strict provision of law embodied in the Evidence Act does not require to be followed by the Consumer Fora for deciding the case under the C.P.Act.   
13. He also submitted that this complaint case is neither a civil suit nor a criminal case and as such, the documents require to be proved strictly as provided under the Indian Evidence Act do not require to be proved as is required in a civil suit or in a criminal case. He also submitted that it is not the case of the appellant-complainants that the leave statement and leave account issued by the office of the deceased are not correct. He also submitted that in that case, the Ld. District Forum rightly placed reliance upon the said leave statement and leave account and arrived at the right conclusion and thereby dismissed the complaint by the impugned judgment. He also submitted that in view of the said leave statement and leave account of the deceased, it is not at all necessary to call any official witness of the office of the Life Assured Jiban Ghosh for proving the said two original documents included within the exhibit ‘A’ series.
14. The learned counsel for the respondents also submitted that the issuance of the insurance policy in favour of the insured by the insurer is based on utmost good faith. He also submitted that the policy in question is not a medi-claim policy. He also submitted that in case of medi-claim policy, the medical examination of the insured before issuance of the policy is mandatory, but in case of non-medical insurance policy, medical examination of the proposer for insurance policy is optional and in that case, the Insurance Company depends upon the statements of the proposer made in the proposal form. He also submitted that if the proposer made an untrue statement in the proposal form suppressing the material fact concerning his health-condition, the Section 45 of the Insurance Act, 1938 empowers the Insurance Company to make enquiry regarding the veracity of the statements made in the proposal form within two years from the date of issuance of the policy. He also submitted that admittedly, the Life Assured Jiban Ghosh died on 05.03.2012 and the respondents issued the insurance policy on 20.07.2011. It means that the insured Jiban Ghosh died within eight months after the purchase of the policy in question. He also submitted that considering the early death of the insured at the age of about 40 years the Insurance Company engaged investigator and in course of investigation, it revealed that the insured in the proposal form suppressed material fact concerning his health-condition at the relevant time and accordingly, the respondents- Insurance Company repudiated the claim of the claimants and informed the same to the appellant-complainant No.1 who in respect of that policy is the nominee of the Life Assured Jiban Ghosh since deceased.
15. The learned counsel for the respondents also submitted that during the pendency of the complaint case before the Ld. District Forum, the respondent-Insurance Company applied to the State Public Information Officer, A.G.M.C & G.B.P.H, Agartala for getting the authenticated medical prescriptions concerning the medical treatment of the Life Assured Jiban Ghosh prior to the date of purchase of the policy in question. He also submitted that the respondent-LICI received the authenticated medical papers on 29.01.2015. He also submitted that the argument in the complaint case before the Ld. District Forum was completed on 21.01.2015. He also submitted that with the completion of argument on 21.01.2015, the respondent- Insurance Company who is the O.P. in the District Forum could no longer get any opportunity to adduce the said authenticated medical documents received through the Authority of the RTI Act as documentary evidence.
16. The learned counsel for the respondents also submitted that as the complaint case has been dismissed by the Ld. District Forum, there arises no question of preferring any appeal against that judgment. He also submitted that during the pendency of this appeal, the respondents have filed an application under Order 41 Rule 27 of the C.P.C. supported by an affidavit praying for accepting those authenticated medical papers as additional evidence in support of the judgment already passed by the Ld. District Forum. He also submitted that although there is no provision in the C.P.Act for adducing evidence at the appellate stage, but for ends of justice and also for strengthening the decision of the Ld. District Forum pronounced in the impugned judgment, the said authenticated medical papers may be accepted as additional evidence for proper and final disposal of the matter in dispute between the parties to the appeal pending before this Commission.
17. The learned counsel for the respondents also submitted that the authenticated medical papers so filed by the respondents at the appellate stage along with the application under Order 41 Rule 27 of the C.P.C. corroborates the relevant entries made in leave account and the leave statement so issued by the office of the deceased regarding his availing of leaves on medical ground. He also submitted that those authenticated medical papers are not unknown to the claimants. The original of those documents are lying with the hospital as well as with the claimants, but the complainants suppressing the health-condition of the then insured have filed the complaint case under Section 12 of the C.P.Act claiming Assured Sum along with some other reliefs only with a view to harass the respondent-O.Ps unnecessarily. He also submitted that since the authenticated medical papers have been issued by the State Public Information Officer, A.G.M.C. & G.B.P.H., there is nothing to doubt the genuineness of those documents and as the said documents are authenticated, it is not at all necessary to call for the original record from the hospital for no useful purpose and as such, the authenticated documents so submitted by the respondents along with the application under Order 41 Rule 27 of the C.P.C. should be accepted from the standpoint of natural justice and accordingly, the impugned judgment should be upheld and the appeal should be dismissed.
18. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment, the memo of appeal, the application under Order 41 Rule 27 of the C.P.C. along with the documents so furnished and the written objection filed against that application. We have also considered the argument advanced by the learned counsels of both sides. Going through the same, we find certain admitted facts in this case. Admittedly, the deceased insured Jiban Ghosh was a Class-IV employee attached to the Tripura Handloom and Handicrafts Corporation Ltd., a Govt. of Tripura Undertaking. It is also admitted fact that the Life Assured Jiban Ghosh purchased the insurance policy from the respondent-LICI, Agartala Branch on 20.07.2011 for an Assured Sum of Rs.70,000/- and the date of maturity of the policy is on 20.07.2029. It is also admitted fact that the Life Assured (L.A.) died on 05.03.2012. It is also admitted fact that the claimant-appellants submitted claim application before the respondents after the death of the L.A. Jiban Ghosh. It is also admitted fact that the respondents vide letter dated 31.01.2013 addressed to the appellant No.1 repudiated the claim of the appellants on the ground that the Life Assured at the time of submission of the proposal form for insurance policy suppressed the material fact concerning his health- condition i.e. that the Life Assured had been suffering from Esophageal Candidiasis, severe Anaemia and other ailments prior to submission of the proposal form for Assurance. It is also admitted fact that barring original documents, some other photocopies of leave applications and some medical examination reports, some photocopies of prescriptions have also been marked along with the said original documents as exhibit ‘A’ series.
19. It is true that there is no provision in the C.P.Act, 1986 providing opportunities to either of the parties to the appeal to submit any application for adducing additional evidence at the appellate stage before the Consumer Fora. It is also true that Section 13(4) of the C.P.Act, 1986 does not provide for filing any application by either of the parties to the appeal for adducing additional evidence at the appellate stage like the provision made under Order 41 Rule 27 of the C.P.C. Section 13(4) of the C.P.Act provides some provisions for invoking the procedure laid down under the Code of Civil Procedure, but that Section 13(4) of the C.P.Act does not speak for filing any such application under Order 41 Rule 27 of the C.P.C. Similarly, the Section 15 of the C.P.Act, 1986 under which an appeal is filed challenging the judgment passed by the District Forum, does not provide for affording opportunities to either of the parties to the appeal to file any application in the spirit as contained under Order 41 Rule 27 of the C.P.C.
20. Before entering into the question of entertainability of the application under Order 41 Rule 27 of the C.P.C. for accepting the additional evidence at the appellate stage, we are of the view that the merit of the appeal at first should be gone through by us. If we peruse the proposal form dated 17.07.2011 submitted by the Life Assured Jiban Ghosh for insurance policy, we find that point No.11 is related to personal history of the Life Assured and in the said point No.11 there are 10 clauses concerning the health-condition of the Life Assured which are as follows :-

1. During the last five years did you consult a Medical practitioner for any ailment requiring treatment for more than a week ?
2. Have you ever been admitted to any hospital or nursing home for general check up, observation, treatment or operation ?
3. Have you remained absent from place of work on grounds of health during the last 5 years ?
4. Are you suffering from or have you ever suffered from ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous System ?
5. Are you suffering from or have you ever suffered from diabetes, Tuberculosis, High Blood Pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy or any other disease ?
6. Do you have any bodily defect or deformity ?
7. Do you have any accident or injury ?
8. Do you use or have you ever used Alcoholic Drink, Narcotics. Any other drugs, Tobacco in any form ?
9. What has been your usual state of health ?
10. Have you ever required or at present availing / undergoing medical advice, treatment or tests in connection with Hepatitis B or an AIDS related condition ?

          It transpires that the proposer Jiban Ghosh answered ‘No’ in respect of clause (i) to clause (viii) and (x), and as regards clause (ix), the proposer answered ‘good’.

21. From the leave record of Late Jiban Ghosh issued vide letter dated 12.07.2012 by Tripura Handloom and Handicrafts Development Corporation Ltd., it transpires that the deceased Jiban Ghosh during his life time submitted ten leave applications and the number of leave sanction memos are also ten. From the leave account of the deceased Jiban Ghosh issued by the said Corporation, it further appears that the Life Assured Jiban Ghosh was granted medical leaves on medical ground for at least six times for the period commencing from 14,04,2010 to 29.04.2010, 29.11.2010 to 10.12.2010, 11.12.2010 to 22.12.2010, 28.03.2011 to 02.04.2011, 02.05.2011 to 13.05.2011 and 14.05.2011 to 29.05.2011. It further appears that the deceased Jiban Ghosh was also granted extra-ordinary leave on medical ground commencing from 30.05.2011 to 03.06.2011 and also leave on medical ground from 06.07.2011 to 07.07.2011. So, it is found that all the leaves mentioned above were granted to the Life Assured Jiban Ghosh during his life time before submission of the proposal form for Assurance which was submitted on 17.07.2011 as appearing from the proposal form.
22. This original letter dated 12.07.2012 containing the particulars regarding the submission of leave record of Late Jiban Ghosh and the leave account of the Late Jiban Ghosh so issued by his office are the best evidences for showing the leaves availed of by the deceased Jiban Ghosh on medical ground for the various periods before submission of the proposal form. It is not the case of the appellant-complainants that these two original documents are not genuine. So, there exists no ground to disbelieve the above mentioned two documents regarding their genuineness and accuracy. 
23. It has been held in the decision reported in 2000 Legal Eagle (J&K) 210 between Indian Airlines Corporation and others Vs Farooq Ahamed pronounced on 27.09.2000 that in the adjudication of consumer disputes, Technical Rules of Evidence will not apply and in the proceeding before Consumer Fora, mere preponderance of probabilities may constitute adequate basis of the decision. It has also been held in the decision of a case reported in 2010 Legal Eagle (SC) 155 between V. Kishan Rao Vs Nikhil Super Speciality Hospital and another, pronounced on 08.03.2010 that the complaint before Consumer Fora are tried summarily and the Evidence Act in term does not apply. It has already been held in para-8 of the said judgment that “this Court held in the case of Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provision of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”.
24. It transpires from the decision referred by the learned counsel for the appellants reported in AIR 1975 Supreme Court 1748 that the principles of law laid down in the said reported case have been pronounced in connection with a Civil appeal No.1327 of 1973. It also transpires from the decision referred by the learned counsel for the appellants reported in AIR 2010 Supreme Court 1162 that the principles of law laid down in the said reported case have been pronounced in connection with a criminal appeal No.1191-1194 of 2005 with 1727 of 2007. It further appears from the decision of the case reported in AIR 1980 Gauhati 55 in first appeal No.7 and 10 of 1972 pronounced on 26.02.1980 that the principles of law have been laid down in connection with the above appeals under the Land Acquisition Act, 1894. It also appears from the decision reported in AIR 1971 Supreme Court 1865 referred by the learned counsel for the appellants that the principles of law laid down in the said reported case is related to a civil appeal. It further appears that the learned counsel for the appellants has referred to a decision reported in AIR 1994 Supreme Court 591 which also relates to a civil appeal. It has also been held in the above decision that the copies should have been accepted in evidence after examining the original records. It also appears from the said decision that the Hon’ble Apex Court laid down the above principles of law in connection with the application of Section 62 and 63 of the Indian Evidence Act. So, it is evident that all the decisions referred by the learned counsel for the appellant-complainants are related to the civil and criminal appeals and not in connection with Consumer cases under the C.P.Act before the Consumer Fora. So, in view of the principles of law laid down by the Hon’ble Apex Court reported in 2010 Legal Eagle (SC) 155, none of the reported cases referred by the learned counsel for the appellant-complainants is applicable in the instant case on the ground that the instant appeal has arisen out of the consumer case instituted under the C.P.Act before the District Consumer Forum.
25. It has already been mentioned that the exhibit ‘A’ series consists of some original documents and some photocopies of leave applications submitted by the Life Assured Jiban Ghosh and some photocopies of medical prescriptions and medical examination reports. Apart from the photocopies, two original letters i.e.  leave records and leave account of Late Jiban Ghosh, according to us, are quite sufficient to establish that the Life Assured Jiban Ghosh was on leaves on medical ground for more than once before the submission of the proposal form of Assurance. These two original documents have amply proved that the Life Assured Jiban Ghosh suppressed the material fact concerning his health-condition on or immediately before the submission of proposal form for Assurance.
26. It has been held by the Hon’ble National Commission in the case reported in RP No.1987 of 2006 that non-disclosure of the fact by the insured that he had suffered from typhoid eleven months prior to the taking of the policy or he had taken 17 days leave for getting treatment was a material fact. It has also been held that the contract of insurance is based on utmost good faith. It has also been held by the Hon’ble National Commission in first appeal No.1385 of 2009 that the statement made in the proposal form in respect of leave was false, which was material fact, hence LICI was justified in repudiating the claim. It has also been held in Revision Petition No.3138 of 2006 passed by the Hon’ble National Commission that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. It has also been held by the Hon’ble Apex Court in the judgment between Satwant Kaur Sandhu Vs New India Assurance Co.Ltd. reported in (2009) 8 SCC 316 that insurance policy is a contract falling in the category of utmost good faith on the part of the assured and if the assured has not made full disclosure correctly or, in other words, if the declaration made is found to be false to the knowledge of the declarant , then, the Insurance Company is entitled to repudiate the claim. It has also been held that any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be “material”.
27. It has also been held by the Hon’ble National Commission in a Revision Petition No.2386 of 2007 between LICI and others Vs Vimala verma that not giving information of a prior hospitalization undoubtedly was a material suppression of facts and it is settled law that a contract of insurance between the insured and the insurance company is based on the principle ubberima fides i.e. a contract entered into ‘utmost good faith’ and suppression of any material information by the insured would amount to breach of contract which would justify repudiation of the claim by the insurance company.
28. From the above cited decisions referred by the learned counsel for the respondents, we find that suppression of any material fact in the proposal form concerning the health-condition of the proposer for Assurance entitles the insurance company to repudiate the claim of the claimants. From the two letters issued by the office of the Life Assured Jiban Ghosh, it is palpable that the said Jiban Ghosh suppressed his illness in his proposal form for Assurance and thereby induced the respondent-Insurance Company to accept the proposal of Jiban Ghosh and relying on the statement made in the proposal form in good faith, the Insurance Company being influenced accepted the proposal and granted insurance policy for an assured sum of Rs.70,000/- in favour of the deceased Life Assured Jiban Ghosh on 20.07.2011.
29. It transpires from the end-portion at page-4 of the proposal form that the signature of the medical officer is necessary for the medical cases only. Admittedly, the insurance policy in question is not a medical case, but a non-medical case and in that case, the examination of the proposer concerning his health-condition for Assurance is not compulsory. It also transpires that in case of non-medical cases, the Insurance Company depends upon the statements made in the proposal form believing the same as true and accordingly, issues insurance policy after accepting the premium amount in favour of the proposer. It also transpires that in the instant case, the same thing happened. Considering the leave record and the leave account of Late jiban Ghosh issued by the office of the deceased, it transpires that the Life Assured Jiban Ghosh submitted the proposal form without disclosing the fact of his taking of leaves on medical ground as provided clause (iii) of point No.11 of the proposal form. The non-disclosure of his taking of leaves on medical ground for several times and also for considerable periods makes it clear that the L.A. submitted proposal form in suppression of the said material fact and as per decision of the Hon’ble Apex Court reported in (2009) 8 SCC 316 the respondent-Insurance Company is legally entitled to repudiate the claim. So, it is found that by way of repudiating the claim of the appellant-complainants, the respondent-Insurance Company committed no illegality.
30. Proof of a fact by documentary evidence does not depend on the number of documents. A fact may be proved even by a single document if that document can be believed considering its genuineness. The appellants have no case that the leave record and the leave account so issued by the office of the Life Assured and submitted the same by the Insurance Company in the District Forum are not genuine, or in other words, the same cannot be believed. In the circumstances, it can be said that these two documents included in the exhibit ‘A’ series have proved that the L.A. Jiban Ghosh has suppressed material fact in the proposal form for Assurance. As per decision of the Hon’ble Apex Court reported in 2010 Legal Eagle (SC) 155, the Evidence Act in term does not apply in a consumer case under the C.P.Act. Hon’ble Apex Court has been pleased to hold that the Consumer Fora under the C.P.Act are to follow principles of natural justice. In that view of the matter, we are of the view that the strict provision of law embodied in the Indian Evidence Act regarding primary evidence or secondary evidence in a case under the C.P.Act does not require to be followed. We are also of the view that the Consumer Fora shall see the authenticity and the genuineness of the documents concerned. There is no dispute that the two letters referred to above included within exhibit ‘A’ series were issued by the office of the deceased Jiban Ghosh. We have already arrived at the conclusion that there is no ground to doubt the genuineness of the above mentioned two letters issued by the office of the Life Assured. In that circumstances, mere raising an objection at the time of taking the said two documents into evidence by way of marking as exhibit ‘A’ series does not render the same inadmissible in evidence. In that circumstance, we are of the view that the Ld. District Forum rightly admitted the said two letters included within the exhibit ‘A’ series following the principles of natural justice without calling or asking any official witness to prove the said two letters as documentary evidence.
31. It transpires that the respondent-Insurance Company during the pendency of the appeal filed an application under Order 41 Rule 27 of the C.P.C. along with certified copies of some medical prescriptions concerning the medical treatment of L.A. Jiban Ghosh. Admittedly, there is no provision in the C.P.Act, 1986 to file any such application in the spirit as provided under Order 41 Rule 27 of the C.P.C. and also to produce evidence at the appellate stage. It is also true that there is no provision in the C.P.Act affording any opportunity to either of the parties to the consumer case or appeal to amend their respective pleadings by way of filing any amendment application before the Consumer Fora, but it has been held by the Hon’ble Madras High Court in the decision reported in AIR 2004 Madras 446 relying on the decisions of the Hon’ble Supreme Court reported in JT 1995 (3) (SCC) 42 in between Canara Bank Vs Nuclear Power Corporation of India Ltd., in JT 1993 (6) (SC) 307 between Lucknow Development Authority Vs M.K.Gupta and in AIR 1994 SCC 787 that the power of the District Forum is wide enough to use even to application for filing an amendment and as a matter of fact, by allowing such an amendment, no prejudice has been caused. It has also been held that though there is no specific provision for amendment in the C.P.Act, 1986, but the application for amendment is entertainable. Going through the above cited decisions, it appears to us that two conditions are required to be fulfilled of which one is that the other side will not be prejudiced thereby and the other condition is that such amendment is necessary for proper and final adjudication of the matter in dispute between the parties.
32. In the instant case, there is no such provision in the C.P.Act, 1986 for allowing either of the parties to adduce additional evidence at the appellate stage on the basis of an application filed under Order 41 Rule 27 of the C.P.C. But the decision of the Hon’ble Madras High Court concerning the entertainability of an amendment application under the C.P.Act mentioned above has inspired us to believe and hold that although there is no provision in the C.P.Act to entertain any application provided under Order 41 Rule 27 of the C.P.C. for adducing additional evidence at the appellate stage, but for proper and final adjudication of the matter in dispute following the principles of natural justice, equity and good conscience, such an application may be entertained in this appeal at the appellate stage, It has already been mentioned that the suppression of material fact in the proposal form submitted by the L.A. for Assurance concerning his availing of leaves on medical ground for several times has been proved which justifies the repudiation of the claim of the claimant-appellants. In that case, it can be said without any hesitation that if the additional evidence is allowed to be adduced at the appellate stage in this appeal, the appellant-complainants will not be prejudiced more in any way.
33. The learned counsel for the respondent-Insurance Company submitted before us that the respondent has obtained certified copies of some medical prescriptions from A.G.M.C & G.B.P.H taking the help of R.T.I Act. He also submitted that the respondent could not submit those certified copies before the Ld. District Forum, because the respondent received those documents when the argument in the complaint case before the Ld. District Forum was completed and that is why the respondent has filed those certified copies of medical prescriptions along with the application under Order 41 Rule 27 of the C.P.C. in this appeal with a prayer for accepting the same as additional evidence. From the certified copies of those documents appended to the application filed for adducing additional evidence, it transpires that the said documents have been signed by S.P.I.O (State Public Information Officer), A.G.M.C & G.B.P.H on 29.01.2015, but the argument in the District Forum as it appears from the order sheet of the case No.C.C.99/2013 was completed on 21.01.2015 and the next date was fixed for delivery of judgment. So, it is palpable that the respondent-Insurance Company obtained those certified copies of documents after the closure of the argument in the District Forum. Therefore, it is evident that the submission of the learned counsel for the respondent-Insurance Company in this regard is found believable and acceptable.
34. From the certified copies of those documents, it transpires that one is bed head ticket concerning the admission of Jiban Ghosh in A.G.M.C and G.B.P.H, Agartala on 25.03.2011 at 4.58 p.m. with the history of severe anaemia, and Jiban Ghosh was hospitalized till 29.03.2011. It further appears that along with said certified copies of bed head ticket some examination reports of Jiban Ghosh certified by S.P.I.O, A.G.M.C and G.B.P.H dated 29.01.2015 during the above period have been filed. From the said bed head ticket, it further appears that the L.A. Jiban Ghosh with 4 gm percentage was a patient of ESOPHAGEAL CANDIDIASIS which is an AIDS- defining illness and is an infection of the esophagus-tube that connects mouth to stomach as published in the medical journal CATIE-FACT sheet. From the leave account of Late Jiban Ghosh, it transpires that he took medical leave on medical ground from 28.03.2011 to 02.04.2011. Be that as it may, this matter of medical treatment was prior to the submission of the proposal form for Assurance. But the fact remains that these certified copies of bed head ticket containing the medical treatment of Jiban Ghosh certified by the State Public Information Officer, A.G.M.C and G.B.P.H is an authenticated documents and there is nothing to disbelieve in its authenticity for taking it into consideration as additional evidence.
35. It has already been mentioned that the suppression of material fact regarding taking of leaves on medical ground by Jiban Ghosh prior to the submission of the proposal form has been well proved. These certified copies of the bed head ticket signed by the S.P.I.O only corroborates the further proof of an existing proved fact and nothing more. The said documents cannot be treated as additional evidence towards the proof of a new fact. In that case, the certified copies of the said bed head ticket of Late Jiban Ghosh can be relied on and used as additional evidence in corroboration of a proved fact which has already been mentioned.
36.  It is settled principle of law that the strict provision of the Indian Evidence Act does not require to be followed by the Consumer Fora while deciding the consumer disputes under the C.P.Act. In that case, we are of the view that it is not at all necessary to send back the case on remand to the Ld. District Forum due to the filing of the application for adducing additional evidence. It has been mentioned that the exhibit ‘A’ series included some photocopies of leave applications submitted by Jiban Ghosh in his office and also photocopies of some medical prescriptions and photocopies of some medical examination reports. It has also been mentioned that the entire bunch of documents including original documents have been marked with exhibit ‘A’ series subject to objection raised by the appellant-complainants, but we find that there is no justification to raise such an objection at least as regards the marking of the original documents included in the exhibit ‘A’ series as admissible documentary evidence. It has also been mentioned that the suppression of material fact regarding the taking of leaves by Jiban Ghosh on medical ground for a number of times and also for a considerable periods has been well proved by the official documents issued by the office of the Life Assured. Even barring the photocopies of those documents as mentioned above, the suppression of material fact by the Life Assured in the proposal form has been well established. The additional evidence i.e. the certified copy of the bed head ticket of Late Jiban Ghosh only has strengthened the proof of the proved fact and thereby there is no chance of being prejudiced afresh by the appellant-complainants.
37. Admittedly, the proposal form was submitted on 17.07.2011 and the insurance policy was issued in favour of the L.A. Jiban Ghosh w.e.f. 20.07.2011. Under Section 45 of the Insurance Act, 1938, the Insurance Company within two years from the date of insurance policy is legally entitled to call in question about the policy by way of verifying the statements contained in the proposal form concerning the health- condition of the Life Assured. The L.A. Jiban Ghosh admittedly died on 05.03.2012 i.e. within eight months from the date of issuance of the insurance policy in his favour.
38. In this regard, we like to reproduce the Section 45 of the Insurance Act which is as follows :-

          “No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected be called in question by an insurer on the ground that statement made in the proposal or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

          Provided that nothing in this Section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life assured was incorrectly stated in the proposal”.

39. From the facts and circumstances, it is evident that the life assured Jiban Ghosh submitted proposal form for Assurance knowing fully well that he had been suffering from various ailments for which he availed of leaves on medical ground for a number of times and also for a considerable periods prior to the date of submission of the proposal form and he deliberately suppressed his illness and availing of such leaves on medical ground in the said proposal form for Assurance. So, it cannot be said that the enquiry conducted by the Insurance Company to verify the truthfulness of the statement contained in the proposal form concerning the health- condition of the Life Assured is improper and unjustified and when on enquiry, it has been established that the L.A Jiban Ghosh in suppression of the material fact submitted the proposal form concerning his health-condition for Assurance, the respondent-Insurance Company rightly repudiated the claim of the complainant-appellants.
40. We have gone through the impugned judgment and found that the Ld. District Forum meticulously considered the cases of the parties and arrived at the right conclusion and dismissed the complaint holding that Life Assured Jiban Ghosh submitted proposal form in suppression of the material fact concerning his health-condition as mentioned in point No.11 of the proposal form. In view of the discussions in details, we find nothing to interfere with the decision arrived at by the Ld. District Forum in the impugned judgment. That being the position, we are of the view that the impugned judgment calls for no interference by this Commission. Accordingly, we are of the view that the impugned judgment should be upheld and the appeal is liable to be dismissed.                                      
41. In the result, the appeal fails. The impugned judgment dated 27.02.2015 passed by the Ld. District Forum, West Tripura,Agartala in case No.C.C.99/2013 is hereby affirmed. There is no order as to costs.

              MEMBER                     MEMBER                      PRESIDENT

                     State Commission        State Commission           State Commission

                            Tripura                          Tripura                              Tripura