Sri Utpal Kumar Bhattacharya, Member

            Instant appeal has been filed by the Appellant/OP u/s 15 of the C P Act, 1986 challenging the Judgment and Order dated 05/01/2017 passed by the Ld. District Forum, Purba Medinipore in Complaint Case No. 179/2016 allowing the complaint on contest against the Appellant/OP.

     The Appellant/OP was directed to pay to the Respondent/Complainant Rs. 1,26,000/-within one month from the passing of the impugned order, failing which, as ordered, the decretal amount should accrue interest @ 9% p.a. from the date of filing the complaint till final payment.

     The prayer for payment of any amount of compensation was declined in the impugned order which, however, allowed a litigation cost of Rs. 3,000/-to be paid to the Respondent/Complainant within the period of one month from the date of passing of the same, in default, the Appellant/OP had to be paid Rs. 50/-per diem as punitive charge to be deposited with the Consumer Welfare Fund.

     The fact of the case, in a nutshell, was that the Respondent/Complainant’s father, being convinced by one Mr. Prasanta Majumdar, the insurance consultant of the Appellant/OP, purchased from the Appellant/OP one policy on 29/12/2015 after signing the policy form and submitting along with the same all relevant documents. The Respondent/Complainant paid an Insurance premium of Rs. 12,480/-on the same date making his son, the Respondent/Complainant, the nominee in respect of the subject policy.

     The father of the Respondent/Complainant, however, had to be admitted in Sub-divisional Hospital at Uluberia on the following day, that is, on 30/12/2015 with serious illness where he breathed his last due to myocardial infarction.

     The Respondent/Complainant then, as the nominee of the deceased insured father, submitted a claim of Rs. 1,26,000/-which the Appellant/OP had repudiated on the ground that the deceased had suppressed the disease pre-existing with him at the time of taking the policy. Repeated persuasion including issuing legal notices to the Appellant/OP being gone in vain, the Respondent/Complainant resorted to the legal step by filing the Complaint Case before the Ld. District Forum which was disposed of by the Forum by passing the impugned Judgment and Order.

     The Appeal was heard ex-parte against the Respondent/Complainant.

     The Ld. Advocate appearing on behalf of the Appellant/OP drew the notice of the Bench to running page-7 and submitted that repudiation was made based on a specific ground of suppression of fact of the patients suffering from the pre-existing disease.

     The Ld. Advocate submitted further that the Ld. District Forum had wrongly recorded that the pre-existing disease had no relation with the cause of death. He invited the attention of the Bench to the last para of running page 20 and submitted that the proposal form of the policy was signed by the insured father of the Respondent/Complainant during the period of his hospitalization from 25/12/2015 to 30/12/2015 for receiving the treatment of acute myocardial infarction.

     As he continued to submit, the Respondent/Complainant had concealed the exact date of admission to the treating hospital which was 25/12/2015 and not 30/12/2015 as claimed in the complaint which may be verified from the “Death Certification” at running page 67.

     The District Forum, as he continued, passed the impugned judgment and order without application of mind and accordingly, the same should be set aside in limine.

     The Ld. Advocate concluded with the prayer for allowing the Appeal.

     We have perused the papers on record and considered submissions of the Ld. Advocate appearing on behalf of the Appellant/OP.

     The papers revealed that the policy was initiated on 29/12/2015 and the patient died of myocardial infarction on 30/12/2015. Running page 67, being the “Death Certification” confirmed the Respondent/Complainant’s stay in the hospital for a period of 6 days w.e.f. 25/12/2015 till his death on 30/12/2015. Further, the letter dated 12/07/2016 issued by the Appellant/OP Insurance Company to the Ld. Advocate on behalf of the Respondent/Complainant revealed in the second para at running page 21 that the father of the Respondent/Complainant on 28/12/2015 gave false declaration about the state of his  health suppressing the fact of his having certain disease. It was peculiar to note that the very date 28/12/2015 on which the deceased had allegedly given wrong information deliberately about his state of health, fell within the period of his hospitalization.

     We are afraid, we are unable to consider any suppression of the disease as the Agent of the Insurance Company collected information from the insured during the period of his hospitalization when the deceased’s suffering was witnessed by he himself.

     Seeing that the patient was hospitalized, the agent should not have initiated the process for issuing the policy or should have got the patient examined medically by the company paneled doctors. Astonishingly, the said Agent of the Appellant/OP company initiated the process and issued the policy with utmost promptitude admittedly receiving from the deceased the policy premium to the tune of Rs. 12,480/-. This led us to assume that the agent was satisfied with the health condition of the insured.

     We did not have any paper supporting the fact of the deceased having any knowledge about the disease allegedly pre existed with him. Naturally, since the deadline of his period of survival was not known to him, the patient might have unknowingly and innocently recorded the state of his health condition. Since the Appellant/OP Company failed to discharge miserably his onus to substantiate his allegation, we were left with reasons to consider that the disease allegedly pre-existed with the deceased insured was not conclusively proved. More so, when the Insurance Company, being the Principal, cannot rule out his responsibility and liability for the work done by its agent.

     We, in view of the above, do not indulge in any view contradictory to the District Forum’s observation of allowing the Complaint. As regards providing relief to the Respondent/Complainant, we are not in agreement with the direction of payment of the punitive charges @ Rs. 50/-per diem to be paid by the Appellant/OP in case of default of payment of cost within the specified period of one month and intend to expunge that part of the order.

     Hence, ordered that the Appeal be and the same stands allowed in part. The Appellant/OP is hereby directed to pay Rs. 1,26,000/-as compensation for life of the deceased  to the Respondent/Complainant as the nominee of the deceased.

     He is also directed to pay a litigation cost of Rs. 3,000/- to the Respondent/Complainant. In the given situation, we are not in favour of passing any order for payment of compensation.

     Entire decretal amount has to be paid within 45 days from the date of passing of the instant order, failing which, simple interest @ 9% p.a. shall accrue to the compensation amount of Rs. 1,26,000/-from the date of default till the entire amount is fully realized.

     The impugned Judgment and Order stands modified accordingly.