PER HON'BLE MR. PREM NARAIN, PRESIDING MEMBER

          This revision petition has been filed by the petitioner – Bajaj Allianz Life Insurance Co. Ltd. against the order dated  21.03.2016 of the State Commission passed in FA No. 2210/2014.

2.      The  brief facts  of the  case  are that the complainant/ respondent is the nominee of  policy  holder of policy No. 0261170603 issued by the OP1.  The policy was issued  and it commenced  from  28.03.2012 and the  proposal form was filled up on 27.03.2012.  The policy amount was Rs.14,72,000/-. The insured died on 24.10.2012.  The claim was submitted  by the complainant to the insurance company but the claim  was  repudiated vide  letter dated 24.05.2013.  The death claim was repudiated on the basis of the following :-

“Non-disclosure : Pre proposal consulation / treatment for peritonitis and surgical procedure of explaoratory laprotroscopy.   Submission of fraudulent document at issuance stage”.

3.      The complainant then preferred a Consumer Complaint No.05/2014  before the District Forum.  Notice was sent to the OPs.  The District Forum considered the non-return of the notice as ‘sufficient service’ on  OPs 1 & 2 under Section 28(a)(3) of the C.P. Act, 1986 and proceeded  against them, ex-parte.  For OP3, who is the agent of the insurance company, the notice was published in a local  newspaper  and  he  was  also  proceeded  ex-parte,  when he did not appear, even after publication. 

4.      The  District  Forum vide  its ex-parte  order  dated 11.08.2014 allowed the complaint and directed the OPs 1 & 2 to release the insurance amount along with cost of Rs.3,000/-.

5.      The OPs 1 & 2 preferred appeal bearing No.2210/2014  before the State Commission  and the State Commission vide its order dated 21.03.2016 dismissed the appeal.

6.      Hence the present revision petition.

7.      Heard the learned counsel for the parties and perused the record.  Learned counsel for the petitioners stated that they were never served with notice before the District Forum and the District Forum on presumption has assumed  service of notice as the notice or the  acknowledgment  were not received by the District Forum,  within a period of 30 days.  Though the C.P.Act, 1986 provides for such service, however, this can be manipulated by the complainant in connivance with the employees  of the postal department and, therefore, this  is not a proper service.  Thus,  the petitioners did not get any opportunity to file their reply to the  complaint before the District Forum.  The main ground of repudiation is the pre-existing disease of the deceased life assured (DLA) but the District Forum did not consider this point in its order.  Even  at the appellate stage, the State Commission has only considered the issue of service of notice  before  the District Forum and  has  not given any consideration or finding on the merit of the  arguments  of  the petitioners/OPs that the DLA was suffering  from pre-existing disease.  The learned counsel pointed out that a complaint cannot be allowed only on the technical  points  without  considering the merits of the case.  The case of  the petitioners  is very strong  on merits.  The petitioners are in possession of the documents  of  treatment  relating to the DLA.  The DLA was admitted in Narayan Super Speciality Hospital on 31.07.2011 and was discharged on  06.08.2011 after his treatment and surgery.  The repudiation  is based on these medical records which have not been denied by the complainant.   Thus, the merit of the case has not been seen by any forum. 

8.      On the other hand, the learned counsel for the respondent / complainant  stated  that  the DLA was  not  suffering from any disease at the time of filling up of the proposal form. The same facts were argued  before  the  State Commission and the State Commission has  rightly recorded its finding on the issue.  It is incorrect to say that the State Commission has not considered  the merits of the case based on the medical reports filed by the OPs/petitioners.  The learned  counsel further argued that both the fora below have allowed the  insurance claim   and the scope under the revision petition is very limited and facts cannot be reassessed at this stage.  It was requested that the complainant is also of old age and therefore the matter may be decided at the earliest. 

9.      I have given a thoughtful consideration of the arguments advanced by both the learned counsel for the parties and have examined the material on record.  It is true that the Section 28 (a)(3) of the C.P. Act, 1986  authorises  the District Forum to declare the service  of  notice  as  complete after  the notice sent by registered post is not received back or  the acknowledgment is not received within 30 days from the date of the issuance of notice.  However, looking at the practical side of this provision, though, sometimes, the parties may be proceeded ex-parte without actual service and in the present case the OPs 1 & 2/petitioners have denied receiving any such notice.  In these circumstances, in my view, the  State  Commission should  have remanded the matter to the District Forum for giving an opportunity to the OPs/petitioners  for filing the written statement as well as for advancing their arguments.  The State Commission, however, has upheld the order of the District Forum for proceeding ex-parte against them.  The State Commission has perhaps not given much  importance  to the medical papers/ reports  because the  respondent  before the State Commission had pleaded that  these papers related to the dates which are after the date of  the  proposal as  is  evident from the following observation of the State Commission :-

“The taking objection to the above submission of the appellant submission was made by respondent that the policy holder was not sick before taking the policy, he died all of a sudden on account of stoppage of heart beat.  The papers of treatment that have been submitted by the Appellant are of the period that after taking of policy because after taking of policy, the policy holder developed the problem of gall bladder because of that he consulted Narayan Super Speicality Hospital on 06.08.2011 and took medicine, as such the policy holder fell sick after taking the policy for which he got the treatment done.  But the death of the policy holder did not occur because of sickness but on account of stoppage of heartbeat and the insurance claim of the complainant was rejected on wrong grounds for which the district forum has passed the order finding the deficiency of service on the part of the insurance company”.

10.    The District Forum has relied on the affidavit given by the complainant  and  one  witness that the DLA was not suffering from any disease prior to the filing of the proposal form. 

11.    It is further seen from the following observation of the order of  the  State Commission that the State Commission has not considered the ground on which the claim was repudiated by the insurance company.   The State Commission has only considered the issue of service of notice on the OPs and has upheld the ex-parte order against the OPs.  The State Commission has observed as under :-

“After hearing the learned advocates of the parties, in detail, and on-going through the file/record, we arrive on the conclusion that the appellant has taken the basis that the appellant was not present before the District Forum is completely baseless because the District Forum has sent notices many times, which were not received back after service, therefore, the appellant knowingly did not appear before the District Forum and the DF has passed judgment / order after all the facts and arguments in which we do not find any error and therefore the appeal is liable to be dismissed”.

12.    From the above, it is clear that the objections of the OPs/ insurance company were not before the District Forum as they were proceeded ex-parte and the State Commission has also not considered the same.  Therefore, in the interest of justice, it is required that OPs 1 & 2 should get a chance to put forth their case before a consumer forum.  It is also seen  from the record that the DLA was admitted in the hospital on 31.07.2011 and was discharged on 06.08.2011 whereas, the proposal form was filled on 27.03.2012, hence, prima facie, it appears that the statement given by the respondent  before the District Forum that the medical  papers submitted  by  the insurance company related to the date after the date of proposal seems incorrect. 

13.    In the light of the order of the Hon’ble Supreme Court in Reliance General Insurance Company Ltd. And another vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. And another [Civil Appeal No…..of 2017 (D. No.2365 of 2017) decided on 10.2.2017  wherein the Hon’ble Supreme Court  has  allowed the filing of the written statement with delay in appropriate cases, on suitable terms, I deem  it appropriate  to allow  the petitioners (OPs 1 & 2) to file their written statement  before the District Forum,  within a period of 30 days  from the date of this order at a cost of Rs.75,000/- to be  paid  by  the insurance company  to the complainant/ respondent  before the next date of appearance before the District Forum.

14.    Based on the  above  examination,  the order dated 11.08.2014 passed  by  the District Forum and the order dated 21.03.2016  passed by the State Commission  are  set aside  and the matter is remanded  to  the District  Forum  for  deciding the complaint, afresh, at a cost of Rs.50,000/-  to be paid  to the complainant  by  the insurance company /petitioners 1 & 2.  The petitioners 1 & 2 are also given an opportunity to file the written statement  before the District Forum,  within a period of 30 days from the date of  this order at a further cost of  Rs.50,000/- by way of demand draft in the name of the complainant. These amounts be paid,  before the next date of appearance  before the District Forum.  However, the District Forum shall be at liberty to extend the date of these payments, if required by another 15 days, in any exigencies.  If the order is not complied with within the stipulated period or as extended by the District Forum, this revision petition shall automatically stand dismissed.

15.    After opportunity is given to the insurance company for filing their written statement, the District  Forum is requested to dispose off this complaint,  within a period  of  six  months  as the complaint has already been delayed.    Parties to appear before the District Forum on 22.05.2018.  Registry to send copies of this order to all the parties within one week by speed post.