JUSTICE V.K.JAIN (ORAL)

            The complainant/appellant obtained a policy namely Accident Guard Policy from the respondent for the period from 06.05.2008 to 05.05.2009.  His case is that on 13.05.2009 he met with an accident while travelling as the pillion rider on a motor-cycle and was admitted to Metro Hospital, Hisar.  He was advised amputation of his  left hand but he preferred another hospital and was admitted in Sir Ganga Ram Hospital at New Delhi on 15.05.2008.  It is the case of the complainant that he became permanently disabled to the extent of 70% on account of the injuries sustained in the accident.  A claim was lodged by him with the insurer but the claim was repudiated vide letter dated 02l.12.2009 which to the extent it is relevant reads as under:-

“1.        The claim was intimated to us on 16th May 2008, towards the alleged accident on 13^th May 2008. As pointed out in our earlier letter dt. 11th November 2009, a claim form & list of documents to be submitted was sent to you on 19th May 2008 and subsequent reminders were sent on 3^rd  and 20^th  October 2008. However, in spite of our timely request for the claim documents and reminders, we did not receive any response from you side nor was any indication even on the grievous nature of injury suffered by you. The incident is said to have occurred within 7 days of inception of the policy but we were informed of the extent and seriousness of the injury only when the claim documents were submitted to us on 1st June 2009. i.e. after a period of more than one year, thus depriving us of an opportunity for timely investigation of alleged accident and claimed.

Further, as stated in our earlier letter, the documents/information as requested by us was given to us in piece-meal manner and clarificator, related to details of Uma matching, were request4ed vide our-email dated 9th October 2009 were presented during the personal visit of our representative on 24th October 2009.

2.         For the reasons stated below, we find that there is a clear violation of the Policy No. 7, stipulating:

• As per the Proposal Form , dated 07^th May 2008 duly, signed by you, your annual income was submitted as Rs. 10.00,000 whereas as per the copy of Income Tax Return for the Financial Year 2007-08, Gross Total Income was shown as Rs.5,11,563/- only, which includes a net profit of Rs.459,564/- from Uma Matching.

• It was also noted that the Income Tax Returns for the FY 2006-07 86 2007-08 were filed' on 31th March 2009 - much after the policy inception and alleged accident.

• A discrepancy was noted in the balance sheet as available with your banker - State Bank of India,which indicates net profit of Uma Matching as Rs.131,353/- only.

• Hence filing of income tax returns, showing exaggerated income, after the alleged incident is a clear afterthought and was done to justify taking the PA policy of a huge amount which was clearly disproportionate to the then proved income.

In the light of above, it is evident that you have mis-represented the material fact of your Income which was the basis for calculation of sum insured under the policy.

3.         Proposal Form clearly indicates that:

"If it is found that the. answers of particulars stated in this Proposal Form and Medical Declaration are incorrect or untrue on any respect, I/We hereby acknowledge that the Insurance Company shall incur no liability for any Insurance coverage"

It is evident from facts elucidated under point No. 2 that the answers of particulars stated in this proposal form are incorrect or untrue.

4. Being a producer/ agent for the TATA-AIG General Insurance Co. Ltd., you were well aware of the Policy  terms and the condition that the" maximum ' sum insured that can be opted in case of Self Employed Person is 20 times of income as appearing in IT Acknowledgement/Audited P&L. However, as indicated above, it is evident that you have misrepresented the material fact related to your annual income which was the basis for calculation of the sum insured under the policy.

5. In addition to the above, the following facts are observed by us, which throws doubts on the incident and the claim:

• No formal FIR was lodged towards the alleged accident, on the other hand a written request was given by your brother Mr. Deepak Khandelwal to Hlsar Police Station not to investigate the case/ to intiate proceeding, against the accused vehicle /owner in an apparent attempt to avoid a through investigation by the police authorities.

• The disability certificate from office of civil surgeon, Bhiwani dt. 3- June 2009, Indicate the injury being more than 2 years old i.e. prior to the alleged accidental injury.

• A visit was made by experts from M/s. Truth Labs (forensic Scientists) on 8^th August 2009 at the accident spot for reconstruction of occurrence. They have opined that the incidence as narrated by Mr. Sunil Kumar was highly improbable and injury report dt. 13^th May 2008 is not consistent with the description of occurrence given by yourself & Mr. Sunil Kumar.

In the light of points number 1 to 5, we regret, our inability to entertain this claim and look at this as an opportunity lost to serve you.”

2.        Being aggrieved from the repudiation of the claim, the appellant/complainant approached the concerned State Commission by way of a consumer complaint. 

3.      The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated. The State Commission having dismissed the complaint vide impugned order the complainant/appellant is before this Commission.

4.      A perusal of the impugned order would show that the State Commission dismissed the consumer complaint primarily on the ground that he had claimed Rs. 87 lakhs as compensation on account of the disability alleged to have been suffered by him but the disability certificate  which he had placed on record as annexure C-10 indicated that the injury was more than 2 years old on the date the certificate was issued.  The certificate being dated 03.06.2009, the complainant obviously could not have suffered the said injury in the accident which happened on 13.05.2008, in case the age of the disability described in the above-referred certificate dated 03.06.2009 was correct.

5.      The Ld. Counsel for the complainant/appellant states on instructions that though the policy had been taken for earlier period as well and there was renewal for the period from 06.05.2008 to 05.05.2009, the complainant suffered the injury which led to his permanent disability only in the accident which happened on 13.05.2008 and not on an earlier date.  Therefore, the primary question which needs adjudication in this matter is as to whether the injury which led to the complainant being permanently disabled to the extent stated in the disability certificate  annexure C-10 was suffered by him in the accident held on 13.05.2008 or the said injury was suffered by him on an earlier date.

6.      The submission of the Ld. Counsel for the complainant/appellant is that there was some error in the disability certificate  to the extent the age of the injury was described as more than 2 years old.  Though, there is no such specific averment in the consumer complaint, the record filed by the complainant before the State Commission would show that he was first treated in Metro Hospital Advanced Trauma and Neurosciences Centre, Hisar and in the medico-legal report it was stated that he has suffered a road-side accident on 13.05.2008.  The treatment at Metro Hospital, Hisar was followed by the treatment of the complainant in Sir Ganga Ram Hospital at New Delhi and the discharge summary issued by the said hospital also referred to the injuries suffered by him on his left hand while travelling on a motor-cycle on 13.05.2008 and getting hit by a car.  Considering the medical record, I feel that the complainant needs to be given a fair opportunity to prove the alleged error in the disability certificate  dated 03.06.2009 issued by the Civil Surgeon, Bhiwani.  The above-referred disability certificate purports to be signed by two member of the Medical Board and counter-signed by its chairman.  None of them was examined before the State Commission. 

7.      The Ld. Counsel for the complainant/appellant requests that  the complainant/appellant may  be given an opportunity to summon one or more of the signatories to the disability certificate  in order to prove the error being alleged by the complainant.  Considering that none of the persons who signed the said disability certificate  was examined as a witness before the State Commission nor was the affidavit of anyone of them filed, it would be fair to give an opportunity to the complainant to examine one or more signatories to the said disability certificate   along-withy the liberty to the insurer to produce such evidence which it may deem appropriate in rebuttal on this particular issue.

8.      The Ld. Counsel for the insurer submits that the age of the injury was not the sole ground for repudiation of the claim and there were other grounds as well including the income of the insurer and the injury not being covered under the policy taken by him. 

9.      In my opinion, since the major claim was based upon the injury alleged to have been suffered by the complainant on 13.05.2008 and adjudication is required on this issue, it would only be fair and reasonable to have a clear-cut finding in respect of the age of the injury, after examination of one or more signatories to the disability certificate, before an informed view on  the complaint as a whole can be taken.

10.    For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission to decide the complaint afresh after giving an opportunity to the complainant to examine one or more of the signatories to the disability certificate  dated 03.06.2008 along-with an opportunity to the insurer to not only cross-examine such a witness but also to produce evidence in rebuttal if it so desires, on this particular issue alone.  The parties shall appear before the State Commission on 09.10.2020.  Considering the age of the case the State Commission shall decide the complaint afresh within 3 months of the parties appearing before it.