JUSTICE J. M. MALIK, PRESIDING MEMBER 1. Deceased, Sahay Barla, the insured, husband of Smt. Hiramani Barla, the complainant in this case obtained ‘Group Mortgaging Reducing Term Insurance from the petitioner-opposite party, Tata AIG Life Insurance Co.Ltd. on 23.6.2006 for a sum of Rs. 4 lakhs. On 6.1.2007, Shri Sahay Barla passed away. His wife made a complaint before the insurance company but the same was repudiated, vide letter dated 4.2.2009, mainly on the ground that he had suppressed the ailments at the time of filling up the proposal forum. 2. The complaint was filed with the District Forum. The District Forum vide its order dated 27.4.2011 allowed the complaint directing the petitioner to pay a sum of Rs. 5 lakh (instead of Rs. 4 lakh as per the policy) alongwith interest @8% per annum to the complainant. 3. Aggrieved by that order, the petitioner filed an appeal before the State Commission. The State Commission dismissed the appeal as its filing was delayed by 93 days. At the time of admission of this revision petition, on 5.7.2012, the counsel for the petitioner vehemently argued that, first of all, the complainant was granted Rs. 1 lakh more than it was mentioned in the policy and secondly his plea of suppression of ailments was not considered. 4. We have heard the learned counsel for the parties. Learned counsel for the petitioner submitted that due to procedural delay, the appeal before the State Commission could not be filed within time. There was a delay of 93 days. Undoubtedly such like delay is fatal to the appeal. However, when the State Commission considered the matter, it should also have a glance over the merits of this case as well. If the case of the petitioner is strong on the merits, in that event, the delay should be condoned on payment of heavy cost. Paramount duty cast upon this Commission is to do justice. The Commission has to be empirical and practical in confronting reality. 5. In the case of N. Balakrishnan vs. M. Krishnamurty 1998 (7) SCC 123, the Supreme Court has held : “13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the party of the applicant, the court shall compensate the opposite party for his loss.” 6. Keeping in view the facts and circumstances of the case, we hereby condone the delay, subject to the petitioner depositing Rs.25,000/- as costs which be paid to the complainant directly through demand draft within one month from today otherwise it will carry interest at the rate of 10% p.a. Receipt be filed before the executing Court. 7. Now let us advert to the merits of this case. 8. After hearing the learned counsel for the parties, we are of the considered view that the deceased-Sahay Barla has suppressed the ailment while signing the proposal forum. Our attention was invited towards the proposal form. Relevant portion of the proposal forum runs as follows: “1. Have you ever been denied for or told you have heart disease, high blood pressure, diabetes, lung disease, asthma, cancer, ulcer, stroke, kidney disease, blood disorder, elevated cholesterol, mental disorder, hepatitis and other liver diseases. | Yes □ No□√ | 2. Have you in the last 12 months consulted or currently receiving any medical treatment, advise for any conditions (other than minor impairment such as cold or flu) | Yes □ No□√ | 3.In the past 2 years have you ever had any illness, injury, surgical operation, received treatment for any ailment for a continuous period of more than two weeks or been confined in a hospital, clinic or similar institution for any condition (other than minor impairment such as cold or flu. | Yes □ No□√ | 4………□ | | 5……… | | 6……… | |
9. This proposal form is signed by Sahay Barla himself on 23.6.2006. The petitioner has also produced on record the photocopy of discharge summary of Shri Sahay Barla dated 12.3.2004 attested by Dr. Aswini Mohapatra, Medical Officer of Shanti Memorial Hospital, which goes to show that Shri Sahay Barla had diabetic foot. The relevant portion runs as follows. “Diagnosis: Diabetic Foot -Inj. Insulin (Actrapid) 16 U BB, BL, BD -Piomed (15 mg)-1X1 -Inj. Nurokind im MD X 8 doses - Fourts B-1X1” 10. The patient also consulted Dr. Hardeep Singh, M.D. (Medicine) D.R.M. (B.A.R.C. Mumbai) on 1.5.2004. The petitioner has also placed on record Dr. Hardeep Singh’s prescription slip and bio-chemistry report dated 1.5.2004. The petitioner has also placed another prescription of Dr. Hardeep Singh, which shows that he was having diabetic foot. There was swelling. There is another prescription dated 12.6.2004 which shows that there was swelling on the feet of the deceased. There is another prescription of Shanti Memorial Hospital and bio-chemistry report is pertaining to the year 2004. 11. The cause of death has been shown due to chronic renal failure. It is thus clear that all these material facts were suppressed from the insurance company. The insured died within six or seven months of obtaining the insurance policy. 12. In the case reported in Satwant Kaur Sandhu vs. New India Assurance Co. Ltd. IV (2009) CPJ 8 (SC), the Supreme Court was pleased to hold: “18. A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalisations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fides, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. (See Joel v Law Union & Crown Insurance Co.) Further on what would constitute a “material fact” in the context of an insurance policy, the Court ruled: “22. The term “material fact” is not defined in the Act and, therefore, it has been understood and explained by the courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be “material”. 23. As stated in Pollock and Mulla’s Indian Contract and Specific Relief Acts: “Any fact the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium is a material fact.” (Emphasis supplied) In view of this discussion, we find that the complainant is not entitled to any benefit. We set aside the order passed by the fora below and dismiss the complaint. However, there shall be no order as to costs. | 
