STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.    HDFC ERGO General Insurance Company Ltd., Registered office, Ramon House, H.T. Parekh Marg, 169, Back way Reclamation, Mumbai -400020, through its.

2.    HDFC ERGO General Insurance Company Ltd., Branch Office SCO No. 124-125, Sector- 8-C, Chandigarh.

Both Deepak Gupta, S/o Jagmohan Gupta Manager Claims Legal, HDFC Ergo General Insurance Company Limited., 2^nd Floor, Ratan Squire Vidhan Sabha Marg, Lucknow

……Applicants/Appellants/Opposite Parties

V e r s u s

Rachhpal Singh, son of S. Gurcharan Singh, R/o House No.1156/1, Sector   44-B, Chandigarh.

              ....Non-applicant/Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by:   Sh. Paras Money Goyal, Advocate for the  applicants/appellants.

                  Sh. Sunil Toni, Advocate for the non-applicant/ respondent.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 11.04.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now non-applicant/respondent) and directed the Opposite Parties (now applicants/appellants) as under:-

“In view of the foregoing observations as well as the above cited case laws, we are of the considered opinion that the claim of the complainant was unjustly/wrongly repudiated. The OPs have miserably failed to place any plausible justification or cogent evidence in support of their averments, whereas the complainant has totally assailed the ground so taken by the OPs for repudiation of his rightful claim.  Therefore, the complaint having lot of merit, weight and substance, must succeed. The same is accordingly allowed. The OPs are directed to pay to the complainant the sum assured amount of Rs.2.00 lacs (Ann.C-1), as the expenses incurred by him on the treatment is more than that, along with interest at the rate of 12% per annum from the date of repudiation i.e. 04.02.2010 (Ann.C-6) till its actual payment, apart from litigation cost of Rs.15,000/-.

This order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay interest at the rate of 15% per annum instead of 12% p.a. on the above awarded amount, from the date of repudiation i.e. 4.2.2010 till its actual payment to the complainant, besides paying litigation cost, as aforesaid”.

2.             The facts, in brief, are that the complainant got Health Suraksha Policy (Annexure C-1), from the Opposite Parties, valid for the period from 03.09.2009 to 02.09.2010,  by making payment of Rs. 9,613/-, towards its premium, vide receipt Annexure C-2. On 8.11.2009, the complainant was admitted in Fortis Hospital, for treatment. Ultimately, he was operated upon, for bye-pass Surgery on 10.11.2009. He was discharged on 17.11.2009, vide discharge summary Annexure C-3. The total expenses incurred, on the treatment of the complainant, were to the tune of Rs.2,29,492/-, as is evident from the bills Annexure C-4 (collectively).  Thereafter, a claim was lodged with the Opposite Parties, by the complainant, for reimbursement of the expenses incurred on his treatment, but it was repudiated by the Opposite Parties, vide letter dated 4.2.2010 (Annexure C-6), on the ground, that he (complainant) was suffering from pre-existing disease, and, as such, the amount of claim was not payable to him. The complainant filed his claim, before the Insurance Ombudsman, Chandigarh, on 8.3.2010 (AnnexureC-7), and the matter was still pending before him. It was stated that the claim of the complainant was illegally and arbitrarily repudiated, by the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to reimburse the claim amount of Rs.2,29,492/-, incurred by him, for his treatment, alongwith interest @18% P.A., till realization; pay compensation for causing mental agony and physical harassment, to the tune of Rs.3 lacs, alongwith interest @18% P.A., till realization; and pay cost of litigation to the tune of Rs.33,000/-.

3.             Opposite Party No.1, in its written version, admitted that the Policy, in question, was obtained by the complainant, for the period from 3.09.2009 to 02.09.2010, on making payment of Rs. 9,613/-, towards its premium vide receipt Annexure C-2. It was also admitted that the complainant, underwent bye-pass surgery, which was a pre-existing disease, and, as such, his ailment and treatment were not covered under the insurance perils of the Policy Annexure R-1. It was stated that, on account of this reason, the claim of the complainant was rightly repudiated by the Opposite Party, vide letter dated 4.2.2010 (Ann.R-2), on the ground, that he was suffering from pre-existing disease. It was further stated that, as such, neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.             Opposite Party No.2, refused to accept service of the notice, and no authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte.

5.             The Parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8.             Alongwith the appeal, an application for condonation of delay of 75 days, in filing the same (appeal), has been moved. The grounds, set up in the application, are to the effect, that the order dated 11.04.2012, was pronounced by the District Forum, certified copy of which was prepared on 16.04.2012, and was received by the applicants/appellants on 17.04.2012. It was stated that the same was sent by the Counsel, to the Legal Office of the Opposite Parties, at Noida, vide email dated 17.04.2012, whereafter, the same was sent, to its Head Office, at Mumbai, for according approval to file appeal. It was further stated that further instructions were issued for preparing the demand draft towards the statutory deposit. It was further stated that instructions were issued to the Counsel, in the third week of April, 2012, for preparing the appeal, which was prepared and sent to the Opposite Parties on 02.05.2012. The demand draft was received on 06.07.2012 and the signed copy of the appeal was received on 26.07.2012, as the dealing official Sh. Praman Preeet Singh Gujral, had left the job and new Official joined the office in the month of July, 2012. It was further stated that, thus, the entire process took sufficient time, resulting into delay of 75 day, in filing of the appeal. It was further stated that due to administrative delay, the appeal could not be filed, in time. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.

9.             The non-applicant/respondent, in reply to the application for condonation of delay, stated that the delay, in filing the appeal, was intentional and deliberate. It was further stated that since, no sufficient cause was constituted, from the averments, contained in the application for condonation of delay, the same was liable to  be dismissed.

10.           We have heard the Counsel for the parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.

11.           First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 75 days), in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

12.                In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

13.           In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

14.           Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

15.           Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicants/appellants, have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground set up, by the applicants/appellants, in the application, for condonation of delay, is that the delay aforesaid, in filing the appeal, occurred on account of the reason that after receiving the impugned order, the same was sent to various offices of the Opposite Parties, for seeking approval to file the same (appeal), which, ultimately, reached in the hands of the Counsel, on 26.07.2012. No document was produced by the applicants/appellants to prove this ground. The averments, contained in the application, are only vague and indefinite. The delay of 75 days, which is more than two times beyond the normal period of filing an appeal U/s 15 of the Act, was on account of  the complete inaction, and lack of bonafides, attributable to the applicants/appellants. The cause, set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal, in time. The mere fact that the concerned Officers/Officials of the Legal Office and the Head Office of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of the appeal, within the stipulated period, provided under Section 15 of the Act, does not mean that they could be shown undue indulgence. The applicants/appellants, therefore, failed to prove, any sufficient cause, in filing the appeal, after a delay of 75 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 75 days cannot be condoned. The application is, thus, liable to be dismissed.

16.           The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

17.               It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into  consideration, all the  relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicants/appellants, to take immediate steps, to ensure that the appeal, could be filed within the stipulated period, as envisaged under Section 15 of the Act.  However, the Officers/Officials of the Legal Office and the Head Office of the applicants/appellants, just slept over the matter and did not take decision promptly, as to whether, appeal was to be filed or not. It was, thus, a case of complete lack of bonafides and inaction, on the part of Opposite Parties. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.

18.           Now coming to the main appeal, the Counsel for the appellants, submitted that since it was proved from the evidence, on record, that the ailment, for which the complainant was operated upon, was a preexisting disease, with which he was suffering, as per the terms and conditions of the Policy, he was not entitled to reimbursement of the claim, made by him. It may be stated here, that, in the instant case, no proposal form was filled in, by the complainant/respondent, nor the question of signing the same, did ever arise, before the issuance of the Insurance Policy. The question arises, as to whether, according to the Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations,2002, it was incumbent upon the Insurance Company, to get the proposal form filled in and signed from the insured, before the issuance of Insurance Policy or not. Regulation 4 of the aforesaid  Regulations, reads as under:-

4. Proposal for insurance

(1) Except in cases of a marine insurance cover, where current market practices do not insist on a written proposal form, in all cases, a proposal for grant of a cover, either for life business or for general business, must be evidenced by a written document. It is the duty of an insurer to furnish to the insured free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form.

(2) Forms and documents used in the grant of cover may, depending upon the circumstances of each case, be made available in languages recognised under the Constitution of India.

(3) In filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Act. Any proposal form seeking information for grant of life cover may prominently state therein the requirements of Section 45 of the Act.

(4) Where a proposal form is not used, the insurer shall record the information obtained orally or in writing, and confirm it within a period of 15 days thereof with the proposer and incorporate the information in its cover note or policy. The onus of proof shall rest with the insurer in respect of any information not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information on any matter material to the grant of a cover.

(5) Wherever the benefit of nomination is available to the proposer, in terms of the Act or the conditions of policy, the insurer shall draw the attention of the proposer to it and encourage the prospect to avail the facility.

(6) Proposals shall be processed by the insurer with speed and efficiency and all decisions thereof shall be communicated by it in writing within a reasonable period not exceeding 15 days from receipt of proposals by the insurer.

19.           The afore-extracted Regulation clearly reveals that except in the marine insurance cover, in all cases, a proposal for grant of a cover, either for life business or for general business, must be evidenced by a written document. It is further evident, from the afore-extracted Regulation, that it was the duty of the insurer, to furnish to the insured, free of charge, within 30 days of the acceptance of proposal, a copy of the proposal form. It is further evident, from the afore-extracted Regulation, that, in filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Act. Any proposal form seeking information, for grant of life cover may prominently state therein, the requirements of Section 45 of the Act. It is further evident, from the afore-extracted Regulation, that where a proposal form is not used, the insurer shall record the information obtained, orally or in writing, and, confirm it, within a period of 15 days, thereof, with the proposer and incorporate the information, in its cover note or policy. The onus of proof shall rest with the insurer, in respect of any information, not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information, on any matter material to the grant of a cover. It is, thus evident, from the afore-extracted Regulation, that getting the proposal form filled in and signed from the proposer was a sine-qua-non, for the issuance of an Insurance Policy. The Opposite Parties were bound by the Regulation, afore-extracted. Regulation 4 referred to above, is mandatory in nature. In the instant case, the Counsel for the appellant, submitted that, no written proposal form was got filled in, from the proposer/respondent, nor the same was got signed from him.  Had the written proposal form been got filled in, and signed, from the proposer, before the issuance of Policy, the Agent of the Insurance Company would have put him questions, as to whether he was suffering from preexisting disease, and if so, what was the nature of that disease; whether he remained admitted in any hospital, for the said preexisting disease; whether he was operated upon for the same, earlier also; and whether he was under medication for the said disease. However, in the absence of such written proposal form, having been filled in and signed by the complainant, the question of obtaining such information, from him, did not at all arise. No other document, was also produced, on record, by the Opposite Parties, to prove that a separate questionnaire was sent to the complainant, wherein, the questions, referred to above, were put to him, but he did not disclose, with regard to his preexisting disease, or suppressed the material facts. Since the proposal form, which was mandatory, as per Regulation 4, extracted above, was not got filled in and signed from the complainant, by the Opposite Parties, later on, they could not turn round and say that material information, with regard to his preexisting disease was not disclosed by the complainant, and, as such, as per the terms and conditions of the Insurance Policy, he was not entitled to the reimbursement of claim, made by him. By not getting the proposal form filled in, and signed from the complainant, before the issuance of the Insurance Policy, the Opposite Parties were clearly deficient, in rendering service.

20.           The next question, that falls for consideration, is, as to whether, the claim of the complainant was legally repudiated by the Opposite Parties. In paragraph number 2 of the complaint, the complainant stated that he obtained the Health Suraksha Policy (Annexure C-1) from the Opposite Parties, valid for the period from 03.09.2009 to 02.09.2010, on making payment of Rs. 9,613/- towards its premium, vide receipt Annexure C-2. He did not, at all, state in the complaint, that he was supplied the terms and conditions of the Policy Annexure C-1. Even in Annexure C-1, it is not indicated that the terms and conditions of the Policy, were supplied to the complainant, at any point of time, to enable him to go through the same, to come to the conclusion, as to whether, he was disentitled to claim any amount, on account of his preexisting disease(s), or not. It was, for the first time, that in the District Forum, Annexure R-1, copy of the terms and conditions of the Policy, was placed on record, by the Opposite Parties. In the affidavit, filed by the complainant, in support of the averments, contained in the complaint, he also stated that he received Annexure C-1. Annexure C-1, is only the cover-note of the Policy, and, there is no mention therein, that the terms and conditions thereof, were attached with the same. The Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations, 2002, framed by the Insurance Regulatory and Development Authority (IRDA) in exercise of the powers, vested in it,  under Section 114(A) of the Insurance Act,1938 read with Sections 14 and 26 of the Insurance Regulatory and  Development Authority Act,1999, came into effect from the year 2002. Therefore, the policies, which were issued after 2002, were covered under the said Regulations. The Insurance Companies are bound by the aforesaid Regulations, which are mandatory, in nature. These Regulations were framed by IRDA to protect the interests of the policyholders. Regulation 3 of the Regulations, ibid, is required to be followed by  the Insurance Companies, so that the terms of the Insurance Policy do not operate harshly, against the insured, and in favour of the insurer. Regulation 3 reads as under:-

“3. Point of sale—(1) Notwithstanding anything mentioned in Regulation 2(e) above, a prospectus of any insurance product shall clearly state the scope of benefits, the extent of insurance cover and in an explicit manner explain the warranties; exceptions and conditions of the insurance cover and, in case of life insurance, whether the product is participating (with profits) or non-participating (without profits). The allowable rider or riders on the product shall be clearly spelt out with regard to their scope of benefits, and, in no case, the premium relatable to health related or critical illness riders in the case of term or group products shall exceed 100% of premium under the basic product. All other riders put together shall be subject to a ceiling of 30 per cent of the premium of the basic product. Any benefit arising under each of the rider shall not exceed the sum assured under the basic product.

Provided that the benefit amount under riders shall be subject to Section 2(11) of the Insurance Act, 1938.

Explanation -—the rider or riders attached to a life policy shall bear the nature and character of the main policy, viz. participating or non-participating and accordingly the life insurer shall make provisions, etc., in its books.

(2) An insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest.

(3) Where the prospect depends upon the advice of the insurer or his agent or an insurance intermediary, such a person must advise the prospect dispassionately.

(4) Where, for any reason, the proposal and other connected papers are not filled by the prospect, a certificate may be incorporated at the end of proposal form from the prospect that the contents of the form and documents have been fully explained to him and that he has fully understood the significance of the proposed contract.

(5) In the process of sale, the insurer or its agent or any intermediary shall act according to the code of conduct prescribed by—

(i)   the Authority;

(ii)  The Councils that have been established under Section 64C of the Act; and

(iii)The recognized professional body or association of which the agent or intermediary or insurance intermediary is a member”.

The aforesaid Regulation makes it clear that—

(i)  the prospectus of insurance product is required to clearly state the scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance cover. The phraseology used is “mandatory” by providing that it shall be stated clearly;

(ii)  Sub-Regulation (2) provides that an insurer or its agent or other intermediary shall provide all material information in respect of the proposed cover to the insured;

(iii) Sub-Regulation 4 also provides that if the proposal and other connected papers are not filled by the prospect, a certificate is required to be incorporated at the end of the Proposal Form from the prospect that the contents of the form and documents        have been fully explained to him.

21.           Regulation 3, which has been extracted above, clearly reveals that it is the duty of the insurer to supply the entire information by issuance of prospectus of any insurance product stating therein the scope of benefits, the extent of insurance cover, in an explicit manner explaining  the warranties, exceptions and conditions of the insurance cover. Not only this, in M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd.I(2000)CPJ1(SC),  the principle of law, laid down, was to the effect, that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all material facts, in their knowledge, since obligation of good faith applies to both equally. It was, thus, the duty of the Insurance Company/appellants/Opposite Parties to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of them, to apprise the complainant, of the benefits of the insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the insurance Policy and the terms and conditions thereof, to the insured, so as to enable him, to go through the same, and understand the clauses contained therein. Not only this, it was also the duty of the Insurance Agent or the Insurance Advisor to explain the terms and conditions of the Insurance Policy, including the exclusion clauses, contained therein. However, in the instant case, the Opposite Parties, as stated above, failed to prove that the terms and conditions of the Insurance Policy were supplied to the complainant. In  United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr.III(2009)CPJ 246(NC), it was observed that being aware of the existence of policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another.  In the instant case, it is not the case of the Insurance Company/appellants/Opposite Parties that the complainant was made known of the meaning of the terms and conditions of the Policy. No affidavit, by way evidence, of the Insurance Advisor or the Agent was placed, on record,  that the complainant was explained the meaning of all the terms and conditions of the Policy and its exclusion clauses. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case.  It is, therefore, held that it was the bounden duty of the Opposite Parties, to supply the terms and conditions of the Policy, to the complainant, immediately, after the premium was paid by him.  In this case, neither the terms and conditions same were supplied to the complainant, nor the same were explained to him, nor exclusion clauses were made known to him. Due to this reason, there was  deficiency, in rendering service, on the part of Opposite Parties. The Opposite Parties were also deficient, in rendering service, to the complainant, on this score.

22.           The next question, that falls, for consideration, is, as to whether, in the absence of supply of the terms and condition of the Insurance Policy, to the complainant, and asking him to fill in and sign the proposal form, by the Agent of the Opposite Parties, at the time of issuance of Annexure C-1, his claim could be repudiated by the Opposite Parties, by relying upon the terms and conditions of the Policy. In Annexure R-1, terms and conditions of the Policy, which were for the first time, placed on the file by the Opposite Parties, before the District Forum, at the time of leading their evidence, no doubt, it was mentioned that the Opposite Parties were not liable to pay, for the preexisting disease(s). However, since neither the terms and conditions of the Policy were supplied to the complainant, nor even the proposal form was got filled in and signed from him, nor any questionnaire was sent to him, asking him, as to whether he was suffering from any preexisting disease, and if so, what was the nature  of that disease; whether he remained admitted in any hospital for the said preexisting disease; whether he was operated upon for the same earlier also, or whether he was under medication for  the said disease, in our considered opinion, he was not under legal obligation to make disclosure of his any pre-existing disease. The Opposite Parties, in our considered opinion, could not, in such circumstances, rely upon the exclusion and warranty clauses/conditions, contained in Annexure R-1. The claim of the complainant, was, thus, illegally and arbitrarily, repudiated by the Opposite Parties. The District Forum, was right in holding so.

23.           No other point, was urged, by the Counsel for the parties

24.           In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

25.           For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal, being barred by time, and devoid of merit, is also dismissed, at the preliminary stage, with no order, as to costs. The order of the District Forum is upheld.

26.           Certified copies of this order, be sent to the parties, free of charge.

27.           The file be consigned to Record Room, after completion

Pronounced.

October 1, 2012

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg

                                                              STATE COMMISSION

(First Appeal No.260 of 2012)

Argued by:   Sh. Paras Money Goyal, Advocate for the  applicants/appellants.

Sh. Sunil Toni, Advocate for the non-applicant/respondent

Dated the 1^st  day of October 2012

ORDER

              Alongwith the appeal, an application for placing on record true transcript of the CD, containing the communication between the Sales Executive and the complainant, has been filed by the Counsel for the applicants/appellants.

2.           The Counsel for the applicants/appellants, submitted that,  no written proposal was got filled in, and signed from the complainant (insured), but, pursuant to the telephonic talk between him and the Sales Executive, the Insurance Policy was issued. He further submitted that the CD of that telephonic talk was prepared. He further submitted that he be allowed to place on record, the true transcript of the CD, containing the communication, between the Sales Executive and the complainant.

3.           No doubt, during the course of pendency of the appeal, the Counsel for the applicants/appellants was directed to place on record the proposal form, already got filled in and signed from the complainant. He took two three dates, but could not produce the same and submitted that no proposal form was got filled in, and signed, from the complainant. The transcript of the CD, with regard to the alleged talk between the complainant and Sales Executive of the Opposite Parties, does not carry any authenticity. In case, such a CD was in existence, then the same alongwith the true transcript could very well be produced before the District Forum, but the Opposite Parties did not do so. No plausible cause has been put forth, as what prevented the Opposite Parties, in producing the alleged CD and the transcript thereof. The genuineness and authenticity of the CD and its transcript cannot be vouchsafed. No ground is therefore, made out for allowing the application.

4.           For the reasons recorded above, the application under disposal, is dismissed.

5.           Certified copies of this order, alongwith the order in the appeal, be sent to the parties, free of charge.

Rg.

                                                                STATE COMMISSION

(First Appeal No.260 of 2012)

Argued by:   Sh. Paras Money Goyal, Advocate for the  applicants/appellants.

Sh. Sunil Toni, Advocate for the non-applicant/respondent

Dated the 1^st  day of October 2012

ORDER

              Alongwith the appeal, an application for placing on record true transcript of the CD, containing the communication between the Sales Executive and the complainant, has been filed by the Counsel for the applicants/appellants.

2.           The Counsel for the applicants/appellants, submitted that,  no written proposal form was got filled in, and signed from the complainant (insured), but, pursuant to the telephonic talk between him and the Sales Executive, the Insurance Policy was issued. He further submitted that the CD of that telephonic talk was prepared. He further submitted that he be allowed to place on record, the true transcript of the CD, containing the communication, between the Sales Executive and the complainant.

3.           No doubt, during the course of pendency of the appeal, the Counsel for the applicants/appellants was directed to place, on record, the proposal form, allegedly got filled in and signed from the complainant. He took two three dates, but could not produce the same and submitted that no proposal form was got filled in, and signed, from the complainant. The transcript of the CD, with regard to the alleged talk, between the complainant and Sales Executive of the Opposite Parties, does not carry any authenticity. In case, such a CD was in existence, then the same alongwith the true transcript, could very well be produced before the District Forum, but the Opposite Parties did not do so. No plausible cause has been put forth, as to what prevented the Opposite Parties, in producing the alleged CD and the transcript thereof. The genuineness and authenticity of the CD and its transcript cannot be vouchsafed. No ground is, therefore, made out for allowing the application.

4.           For the reasons recorded above, the application under disposal, is dismissed.

5.           Certified copies of this order, alongwith the order in the appeal, be sent to the parties, free of charge.

             Sd/-                                            Sd/-

Rg.