Hon’ble Mr. Ajeya Matilal, Presiding Member
Ld. Counsel appearing for the Appellant is present.
Today is fixed for ex parte hearing of the appeal.
The appeal being no. 381/2018 is taken up for hearing.
Being aggrieved by and dissatisfied with the judgment dated 20.03.2018 passed by the Ld. DCDRC, Unit—II, Kolkata allowing the complaint case being no. 318/2017 in part on contest, the Appellant preferred the appeal. It appears from the impugned order that the OP was directed to return the premium amount, amounting to Rs. 50,000/- along with interest @ 7% p.a. and litigation cost of Rs. 2,000/- to the Complainant within 30 days from the date of receipt of this order, in default, the OPs to pay fine @ Rs. 100/- per day delay and the amount so accumulated should be deposited to the Forum below.
Heard the submission of the Ld. Counsel for the Appellant.
Considered.
Ld. Counsel for the Appellant submitted that the Ld. Commission below held that the Complainant/Respondent suppressed the material fact of the sufferings of the policy holder from acute Bronchial Asthma.
On that score the Ld. Commission below concluded that the Complainant was not entitled to get the death benefit of the policy but the Ld. Commission below held that the Complainant is not entitled to get the amount paid in respect of the premium paid amounting to Rs.50,000/- with interest.
The Ld. Counsel for the Appellant submitted that this portion of the impugned order cannot be sustained and it suffers from illegality.
In support of his contention Ld. Counsel for the Appellant referred to a decision Page no 5 of Point no. 3 of his BNA in the matter of Padaman Ram Paswan vs. Life Insurance Corporation of India W.P. (C) No. 48 of 2018 dated 19th March, 2018 the Hon’ble High Court of Jharkhand wherein the Hon’ble Court observed that “So far as claim of refund of the amount of premium is concerned, the issue is squarely covered by the judgment reported in AIR 1962 S.C. 814 wherein it has been held that in case of material and fraudulent suppression, there is no question of refund of the premium amount”.
Ld. Counsel for the Appellant further submitted that there was no deficiency in service as per Section 2(1)(g) of the Consumer Protection Act, 1986.
In this context, the Ld. Counsel for the Appellant further referred to a decision of Hon’ble Supreme Court in Ravneet Singh Bagga—vs.—KLM Royal Dutch Airlines reported at (2000) 1 SCC 66 wherein the Hon’ble Court observed that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The Complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent.”
Ld. Counsel for the Appellant submitted that nothing is reflected in the impugned judgment to the effect that there was no deficiency in service on the part of the OP.
So, in view of the factual scenario of the case and position of law cited we are of the view that the Complainant is not entitled to get the amount paid by the Complainant as premium amounting to Rs. 50,000/-. So, the extract of the order, “the Respondent is directed to pay the death benefit of the policy to the Complainant in terms of the concluding portion of the judgment considering the suppression of material fact as to the suffering of the policy holder from Acute Bronchial Asthma we can safely conclude that the complainant is not entitled to get the death benefit of the policy but we are of the view that the complainant is entitled to get the amount paid as to premium paid amounting to Rs. 50,000/- with interest” be expunged from the impugned judgment.
Accordingly, the Appeal is allowed to that extent.
Impugned order is modified accordingly. There shall be no order as to costs.
Let a copy of this order be sent down to the Ld. Commission below.
Let the copies of the order be made available to the parties free of costs.
Appeal being no.381/2018 is disposed of.
Note accordingly.
