JUSTICE SUDIP AHLUWALIA, MEMBER

          These are two Revision Petitions filed by the Insurance Company which was the Opposite Party in Consumer Complaint Nos.73 & 74 of 2013.  The Complainants therein were the wife and brother of deceased Macherla Kishore Kumar who had taken two separate Insurance Policies on his life for Rs.2 lakhs and Rs.5 lakhs in favour of his wife and brother respectively. 

2.      One of the complaints was initially allowed by the District Forum, but the other one was dismissed in view of the contest raised on behalf of the Opposite Party. The Opposite Party/ Petitioner had contended that the Policy in question had been repudiated since the deceased had suppressed correct information regarding his state of health at the time of obtaining the Policies.  According to the Insurance Company, the deceased was suffering from ‘Jaundice from fever’ and had been afflicted with “Conus Epndynoma with bladder involvement” and “Spiral Inliamedular Tumor with T11, T12”, for which he had undergone “Laminectomy & Excision of Intracimecluttany Epndymoma”, about a year or so earlier.  Since those two decisions in the two separate complaints were passed by different Benches/Members of the District Forum, when the same were challenged in Appeal, the Ld. State Commission remanded both the matters with a direction that the same be heard and re-decided together. Thereafter, the District Forum on 20.04.2017 allowed both the complaints.  It is noteworthy that the full quorum constituting the District Forum at that time had the same President  and  the  two  other  Members.  The  orders  were however, authored separately by Shri K. Sivarama Krishna, and  by Smt. D. Raja Kumari, Lady Member in the District Forum. But as in both cases the complaints were allowed, the Appeals were preferred against the orders by the Insurance Company being FA/215/2020 and FA/250/2020, both of which were dismissed by the State Commission by virtue of the impugned Order which was passed by the President of the State Commission.

3.      In doing so, the State Commission essentially was not convinced with the defense of the Insurance Company, and was of the opinion that the documentary material placed on record by the Insurance Company was insufficient, as well as inadmissible for the purpose of being relied upon, to defeat the case of the complainants.

4.      Apart from minor variations, the reasoning recorded by the State Commission in both cases was virtually identical.  The relevant extract thereof are set out below:

14) “On 31.12.2012, the complainant submitted a letter, Ex.A-5, to the Review Committee to reconsider her claim. Ex.A-6 is the acknowledgement. Ex.A-7 is the representation submitted to the Review Committee.

15) The crucial question that falls for consideration is whether the opposite parties are justified in repudiating the claim of the complainant. The opposite parties repudiated the claim vide its letter, Ex.A-4, the relevant portion reads as under:

"Non disclosure of pre proposal treatment for conus epndynoma with bladder involvement with an advice for surgical excision and diagnosis of Spiral inliamedular tumor withT11, T12 laminectomy and excision of intramedullary epndynoma.

Had these facts been disclosed the company would not have covered the risk for the above said policy under the same terms and conditions.

Hence, the claim has been repudiated due to misrepresentation of material facts".

A perusal of Ex.A-4 gives an impression to any person that the life assured induced the opposite parties to issue Ex.A-1, policy by suppressing the material information with regard to his health condition. It is needless to say that the burden of proof lies on the Insurance Company to establish that the life assured suppressed the pre-existing disease in the proposal form with an ulterior motive. We have carefully scanned Ex.B-1, investigator report which is the basis for repudiation of the claim. There is no mention in Ex.B-1, investigator's report, from whom the investigator collected the medical record of the life assured. There is no mention in the repudiation letter that the life assured had taken treatment in Care Hospital, Hyderabad much prior to the issuance of the policy. Non-mentioning of the hospital name in which the life assured alleged to have been taken treatment in the repudiation letter, ExA-4 and written version creates a suspicion on investigator's report, Ex.B-1. The opposite parties did not choose to file the evidence affidavit of the investigator. Ex.B-4 is the Xerox copy of the hospital record without signature of the concerned doctor or the hospital authority.

16) When the matter is coming up for arguments before the District Forum, the opposite parties filed IA No. 29 of 2017 for issue of summons to Dr.B.S.Shiva Reddy and to cause production of the documents. The District Forum in a right spirit allowed the application so as to enable the opposite parties to substantiate its stand. Inspite of the issuance of summons, the opposite parties did not evince any interest to secure the presence of witness to substantiate its stand. This itself indicates non-seriousness on the part of the opposite parties to substantiate its stand.

                                                                                         (Emphasis added)

17) Ex.B-4 is not an authenticated document. Suffice it to say, this Commission cannot place reliance on unauthenticated documents. Viewed from any angle, no credence and credibility can be attached to Exs.B-1 and B-4. If Exs.B-1 and B-4 are discarded, there is no material much less cogent and convincing material to substantiate the stand taken by the opposite parties while repudiating the claim of the complainant. The repudiation of the claim without any foundation or basis would amount to deficiency in service as contemplated under Section 2(1)(g) of the Consumer Protection Act, 1986.

18) The District Forum considered Exs.B-1 and B-4 in the light of the various provisions of the Indian Evidence Act as well as the pleadings of both the parties and arrived at a right conclusion that there is deficiency in service on the part of the opposite parties. The findings recorded by the District Forum are fully supported by the documents produced by both parties. We are fully endorsing with the findings recorded by the District Forum. Viewed from any angle, the appeal is liable to be dismissed.”

5.      Contention of  Ld. Counsel for the Petitioner-Insurance Company in this regard is that the strict rigours of the Evidence Act are not to be applied in consumer proceedings in which a summary procedure is to be adopted.  In support of this contention reliance has been placed upon a decision of the Hon’ble Supreme Court in the case of ‘Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Ors.’ (2009) 9 Supreme Court Cases 221’, where in it was observed:-

“43. Apart from the procedures laid down in Sections 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act. The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.” 

6.      This position was again reiterated by the Hon’ble Supreme Court in the case “V. Krishana Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 Supreme Court Cases 221”.

7.      In the light of the aforesaid contention regarding the need to do away with, or at least minimize the strict rigors of the Evidence Act for the purpose of formally proving the material to be relied upon in defense, Ld. Counsel has drawn attention to the documents which were actually placed before the District Forum.  The first of such documents happens to be the Investigation Report (Annexure P-11) which was prepared by the Petitioner’s own Investigator on 23.11.2012.  Such report had been drawn up by the Investigator on the basis of the material collected by him.  This includes the copies of the admission notes pertaining to the alleged admission treatment of the deceased life insured in “Care Hospital” w.e.f 24.11.2010, in which in the notes on  26.11.2010 it was also recorded that the said patient was posted for surgery.  Thereafter, the surgery was apparently done on that very date, since in the Progress Notes, it was noted “T11, T12 Laminectomy & Excision of Intracimecluttany Epndymoma”, consequent to which certain post- operation instructions and medicines were also prescribed.

8.      The above documents were not accepted by the District Forum since the same had not been led into evidence in a formal manner i.e. by way of examining the concerned Medical Officer or the person, who had drawn up the same.  Undoubtedly, an opportunity appears to have been granted to the Insurance Company to call the concerned Doctor/ Medical Officer who had drawn up those documents, but the District Forum on 22.03.2017 closed the evidence from the side of the Opposite Parties when the concerned witness/ Doctor did not appear before it, after Summons against him had been issued.  It was however not recorded by the District Forum whether or not service of the Summons upon the witness had actually been effected. To that extent the approach of the District Forum would appear to be somewhat contradictory, since it had acted in a hyper-technical manner on the question of non-acceptance of the documents placed on behalf of the Opposite Party not being relied upon on account of failure to have the some proven in a formal manner.  However, the other part of the established norms which enjoin upon a Civil or other Court of competent jurisdiction to close the evidence only after being satisfied that presence of any particular witness  could be dispensed with, only if the party summoning such witness had contributed in any manner to such non-appearance.  The District Forum neither sought to confirm whether summons upon the witness had at all been served or not.  The question of issuing any coercive process to compel appearance of the said witness, if at all such Summons were to be found to be served, was an even farther course of action, which could have been resorted to with a view to find out the actual truth in the controversy involved.

9.      The Ld. District Forum in having issued the summons on the concerned Doctor/Medical Officer was clearly exercising its powers under Section 13(4 ) of the Consumer Protection Act, 1986, which are at par with all the powers of a Civil Court under the Civil Procedure Code, 1908.  Having thus, embarked upon this course of action to summon the concerned witness, leaving the process mid-way, would certainly constitute  a miscarriage of justice, if the witness concerned had failed to turn up inspite of due service of summons, about which the Ld. District Forum did not even seek to verify.  Had the Summons been actually served, the next lawful course of action thereafter ought to have been the issuing of coercive processes to enforce the attendance of the said witness under Section 13(4)(i) of the Consumer Protection Act, by exercising the relevant powers under Order XVI Rules 10 & 12 of the Civil Procedure Code.  Suffice it to say, leaving the matter mid-way when the real question to be determined in the case was whether or not there had been wilful suppression of facts, or any misleading information being supplied by the deceased/life assured, by simply noting that the witness had failed to turn up inspite of issuance of Summons, and without even seeking to verify whether the party concerned i.e. Insurance Company was in any manner responsible for such non-appearance, would defeat the very purpose of the entire proceedings, in which the endeavour ought to have been to get to the bottom of the truth in the face of the conflicting versions of facts.

10.    For the aforesaid reasons, the impugned Orders which essentially have the effect of artificially curtailing an opportunity to the Petitioners/Opposite Parties to prove their case in accordance with law, without providing them the fullest opportunity of enforcing attendance of the concerned witness are unsustainable and against the principles of natural justice.

11.    For the aforesaid reasons, these Revision Petitions are allowed after setting aside the impugned Orders.

12.      The  Complaints are now remanded back to the Ld. District Forum with a direction to issue fresh Summons/appropriate process against the concerned witness i.e. the Medical Officer/Doctor who had not appeared inspite of issuance of Summons upon him.  The Ld. District Forum shall not mechanically close the Opposite Party’s evidence as was done before passing the impugned judgment, but shall invoke all its powers to ensure attendance of the witness concerned, and only thereafter shall decide the matter in accordance with law as explicitly as possible.

13.    No orders as to costs. Parties are now directed to appear before the Ld. District Forum on 26.10.2023.

14.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.