Dated: 04.03.2023

COMMON ORDER

BY HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT

1. These Appeals are filed by OPs under Section 41 of Consumer Protection Act, 2019, aggrieved by an common order dated 30.12.2022 passed in Consumer Complaint Nos.107, 130, 131 and 139 of 2019 by District Consumer Disputes Redressal Commission, Davanagere (herein after referred as District Commission and the parties arrayed as in the consumer complaint)
2. The Commission examined grounds of appeals, impugned order and heard learned counsel for appellants.  Accordingly, found satisfied to dispense with issuance of notice of these appeals to be served on respondents to avoid further delay.
3. One Mr.Aravind S.A died on 16.03.2015, had obtained policies during his life time and nominated complainants/respondents herein who are none other than father and brother to receive the benefits of the said policies. After the death of the insured complainants/respondents filed their claim form to the insurer which was repudiated on the ground that the deceased was having pre-existing disease and was not disclosed in the proposal forms. Thus respondents/complainants filed Consumer Complaint before District Commission seeking claim amount from the insurer. The Commission below admitted the complaint, ordered notice of OPs to appear before the Commission to hold an enquiry.  However, OP3 in CC Nos.107, 130 and 131 of 2019 and OP1 & OP3 in CC/139/2019 failed to participate in the proceedings, was placed exparte. OP1, 2 and 4 in CC Nos.107, 130 and 131 of 2019 and OP2 in CC/139/2019 appeared through learned counsels and contested the matter. The Commission below after holding enquiry allowed the complaints in part, directed OP1 to 4 in CC Nos.107, 130 and 131 of 2019 to pay the assured sum of Rs.9,23,100/- as against the policy No.0269359123, Rs.2,98,624/- as against the policy No.0268753026 and Rs.6,61,000/- as against the policy No.0269508943 to the complainant within 30 days.  Further directed OP1 to 3 in CC/139/2019 to pay sum of Rs.16,77,546/- to the complainant within 30 days from the date of order. Besides awarded Rs.5,000/- to each of the complainant towards litigation expenses.  Aggrieved by the said order OP1, 2 and 4 in CC Nos.107, 130 and 131 of 2019 preferred these appeals on the ground that the entire findings given by the Commission below  is contrary to facts and law and sought for dismissal of the complaint.
4. It is to be noted herein that none of the parties in CC/139/2019 preferred any appeal before this Commission.  Hence the order passed in CC/139/2019 is kept as in existing circumstances.  Further in para-31 of the impugned order could see that – “the Commission makes an observation that though the OPs have filed an application for issuance of the summons to Kasturba Hospital Manipal to produce those documents and those documents are produced by the witness on 29.11.2022, the OPs have not made any attempt to recall RW-1 to get those documents marked.  Under these circumstances an adverse inference could be drawn as against the OPs” and only on such an observation Commission below allowed the complaints which in our view is not admissible. In our view, the Commission below could have directed the OPs to get marked those documents as the documents that are formally produced are given an identity and referred to as exhibits and their evidentiary value has to be analysed while disposing the matter.  Further the Commission below failed to consider the evidence of RW-1 along with Ex.B1 to B4 in CC Nos.107, 130 and 131 of 2019.  Thus in such view of the matter, in our view, it would be just and proper to remand back these matters to Commission below to reconsider the case as observed affording opportunity to both the parties and to decide the case in accordance with law. Accordingly, Appeal Nos.335 to 337 of 2023 stands disposed off.
5. The Amount in deposit is directed to be transferred to Commission below for needful.
6. Send a copy of this Order to the District Commission and parties to the appeal.

Lady MemberJudicial MemberPresident

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