By Sri. Gururaj, Member:-
THE BRIEF FACTS OF THE CASE:
1. The complainant has filed this complaint against the Opposite Party U/s 12 of Consumer Protection Act for the reliefs of death claim amount of Rs.13,00,000/- along with 2% interest and cost of the litigation to the tune of Rs.20,000/- as under. It is the case of the complainant that, he is is an illiterate widow her husband by name Late Earappa S/o. Pothappa, R/o. Karatagi village, Dist: Koppal had insured his life with the Opposite Party company for an assured sum of Rs.13,00,000/- on 25-08-2012 vide policy No,0278918588 for ten years with a regular premium of Rs.1,80,297/- and risk coverage starts from 28-09-2012 under the name and style of “”Bajaj Allianz Super Saver Policy and same is going to be matured on 28-08-2022. It is the case of the complainant that, before issuance of the policy, the Opposite Party had medical examination of the policyholder through their penal doctor and after obtaining the medical reports the policy has been issued. The life assured late Earappa is an uneducated and rustic villager, the Opposite Party and his consultant did not explain any terms and conditions of the policy and even not explained the contents of the proposal or policy. In order to get the business the Opposite Party consultant secured the signature of the said Earappa on proposal form. The said Earappa signed the proposal accordingly as per the advice of Opposite Party.
2. Further it is the case of the complainant that, during the currency of the policy, the said Earappa passed away on 16-07-2013 due to illness. The death intimation was given to the Opposite Party after two three days of passing away of said insured. Subsequently, issuance of said intimation to Opposite Party, he sent few papers in respect of claim form and got signature of the complainant wherever required on the claim form and the complainant also signed the said claim form as per the advice of consultant of Opposite Party. Further it is contended that, in spite of receipt of the documents and claim forms from the complainant they have not entertained the claim of the complainant and repudiated on alleged suppression of the pre existing disease of “Squamous cell Carcinoma of Hard Palate and suppression of age by 09 years” on routine and flimsy grounds. The very act of the Opposite Party that, having accepted premium for the said scheme after due cross verification regarding the details of health through their penal doctor and rejecting the claim at the time of its processing subsequent to getting business from the insured is nothing but deficiency in service, negligence and unfair trade practice in the eyes of law.
3. The complainant further alleges that, the complainant being a rustic villager & widow and has been unable to approach the frequently to Opposite Party by seeking the benefits of her husband. The Opposite Party denied the claim of the complainant by giving vague reply on the ground that, he is not liable to pay any amounts to her and denied the same by repudiating and giving the direction to approach his Zonal manager Pune for getting redressed is also against the law pertaining to the policy in question. After receipt of the said letter the complainant she being an illiterate was unable to proceed with as advised by Opposite Party and with no alternative remedy contacted her counsel and got issued a letter/application to the Zonal Manager of Opposite Party on 24-06-2014 but same was not at all entertained till today and no action was taken by the Opposite Party Zonal Manager. Hence, she has filed complaint before the Hon’ble Forum, Raichur vide complaint no.7/2015 by clubbing the present policy along with other which exceeds pecuniary jurisdiction of this Hon’ble Forum. Therefore, she has withdrawn the said complaint and filed the present complaint on same cause of action seeking the reliefs as stated supra and prayer column of the complaint.
4. After service of notice of complaint on the Opposite Party, Opposite Party appeared through his counsel and filed his version contending that, the complaint filed by the complainant against Opposite Party is not maintainable either in law or on facts. The complaint filed by the complainant is barred by law of limitation and territorial jurisdiction and the allegations of the complaint are all false, not true not valid and not binding on the Opposite Party. Further it is contended that, the condition of the policy were properly explained to the life assured before signing the proposal form and he was having proper and complete knowledge of the terms and conditions of the policy. The medical examination conducted on generic nature. The proposer as to disclose about his pre existing health condition then only the Opposite Party Company will conduct detailed and focused medical test pertaining to the said ailment. The life assured does not permit to make in correct and false declaration with regards to his/her health condition which is specially required to be disclosed in the proposal time. But the life assured has not disclosed in the proposal form or at the time of consultation about his pre existing Squamous Cell Carcinoma of Hard Palate from September-2011, further he has also not disclosed about the treatment taken by him in Kasturabha Medical College, Manipal.
5. Further it is the case of the Opposite Party that, the life assured has also not disclosed his proper age at the time of obtaining the policy in question he has understated his age by 9 years. If he would have disclosed the correct facts about his age and pre existing disease the company would not have insured the life assured under the said policy. The suppression of these material facts are give rise to rights of the claim rejection of the policy in question.
6. The Opposite Party further contended that, the life assured suppression of pre existing disease has been proved by medical records issued by Kasturabha Medical College, Manipal and about his understated age about 9 years was also proved by voter ID and Aadhar Card of life assured which are not tallied with proposal form. The concealment or suppression of material facts goes to show that, the very route of his contract which is borne out of Uberrima Fidies or “UTMOST GOOD FAITH” is voidable and unenforceable at the option of the party whose consent was so caused. The life assured committed deliberate breach of terms and conditions in policy no.278918588. The life assured had intentionally concealed his pre existing disease and actual age from the company at the time of making the proposal of the policy. The allegations and statements made in the complaint are contrary to the terms and conditions of the policy. Hence, the complaint is deserves to be dismissed on the principle of “Nulluscommodumcaperepotest ex suainguriapropria” as the complainant cannot derive un-advantage from his own wrong.
7. It is the case of the Opposite Party that, the complainant has not disclosed the true facts before the Opposite Party at the time of proposal of the policy in question he has suppressed his age and pre existing of disease of carcinoma. He has not approached the forum with clean hands. The Opposite Party Company has taken the action against the claim of the complainant in good faith. There is no deficiency of service on the part of the Opposite Party. The Opposite Party has taken decision of repudiation with due care. Hence under the above circumstances, the claim of the complainant is not maintainable and sought for the dismissal of the same with cost in the interest of justice.
8. The Complainant has been examined himself as PW-1 by his evidence affidavit and documents are got marked as Ex.P-1 to Ex.P-05. The Opposite Party has filed their evidence by way of affidavit of one Sri. Kalmesh Tavanshi, Branch Manager as RW-1, Sri. I.K. Rjashekhar Reddy, Investigator for stellar Insurance Management Service Pvt Ltd., as RW-2, and Sri. R.Ashwin Kumar, Chief Investigator, Lavanya & Co. Bangalore as RW-3 respectivelly. and has got marked his documents as Ex.R-1 to
Ex.R-33.
9. Heard the arguments of both sides perused the records and evidence led by respective parties and perused the written arguments of Opposite Party also.
10. On the basis of above said facts, the following points are arose for our consideration :
- Whether the complainant prove that there is a deficiency in service on the part of the Opposite Party as alleged?
- Whether the complainant is entitled for the relief or reliefs?
- What Order?
We answer the above points as follows:
- Point No.1 : In the Affirmative.
- Point No.2 : In the Affirmative.
- Point No.3 : As per final order
REASONS
POINT NO.1:
11. It is the case of the complainant that, her husband by name late Earappa has obtained the "Bajaj Allianz Super Saver Policy” bearing NO.0278918588 on 25-08-2012 for an assured sum of Rs.13,00,000/- by paying a premium amount of Rs.1,80,297/-. The said Earappa life assured died due to illness on 16-07-2013 and after his death she being a nominee of the life assured Earappa approached the Opposite Parties for to settle the claim under the policy in question but the Opposite Party has repudiated the claim vide letter dt. 19-04-2014 on a ground suppression of pre existing disease and under age of 9 years while submitting the proposal. It is also contended by the complainant that, after repudiation she has approached Zonal Manager of Opposite Party through application dt.24-06-2014 but even then her claim was not settled hence she has filed the present complaint.
12. The Opposite Party in rebuttal filed the written version contending that, the claim of the complainant cannot be settled as there is a suppression of pre existing of disease Squomous Cell Carcinoma of Hard Plate and suppression of age by 9 years by the disease at the time of submitting the proposal. There is no any deficiency in service on the part of the Opposite Party. The complaint filed by the complainant is barred by limitation, jurisdiction and sought for the dismissal of the same.
13. On perusal of pleadings of the parties, documents, evidence and arguments submitted by both the counsels. It is found that, there is no dispute between the parties that, the late Earappa was obtained the policy "Bajaj Allianz Super Saver Policy” bearing No.0278918588 for an assured sum of Rs.13,00,000/- by paying a premium of Rs.1,80,297/- on 25-08-2012. It is also in force at the time of death of life assured late Earappa. It is also not in dispute that, after the death of the late Earappa on 16-07-2013 the complainant has submitted her claim before the Opposite Party. It is also not in dispute that, the Opposite Party has repudiated the claim on 19-04-2014 and matter went upto Zonal Manager of Opposite Party.
14. After detailed enquiry of the case, the other issues/aspects for our consideration are arises as under; which are helpful to decide the points raised above.
1) Whether the complainant’s husband life assured late Earappa has
Suppressed his pre existing disease, his age as 9 years lesser than what he has actually?
2) Whether the complaint of the complainant is barred by limitation
as contended by the Opposite Party?
15. For the point no-1 is concerned, particularly regarding the suppression of the pre existing disease is concerned, the Opposite Party mainly relied upon the documents filed under Ex.R-8, R-14, R-15 to
Ex.R-25.
The Ex.R-8 is the investigation report of Lavanya & Company Bangalore. The Ex.R-14 is the additional investigation report of said Lavanya & Company Bangalore, and Ex.R-15 is the Histo Pathology report issued by Department of Pathology, Ex.R-16 is the Laboratory report, Ex.R-17 is the report of Radio Diagnosis & Imagine, Kasturaba Medical College, Manipal. Ex.R-18 is the 2nd Additional Investigation report of Lavanya & Company Bangalore, Ex.R-19 is the requisition letter issued by Lavanya & Company to the Medical Superintend, Kastruba Medical College, Manipal. Ex.R-20 is the certificate issued by the hospital regarding change of name of one Mr. Earnna Kudaremanne into Veeranna.G @ Earappa. Ex.R-21 &
R-22 are the copy of the affidavit and its translation respectively. Ex.R-18,
Ex.R-21, Ex.R-22 are marked under subject to objection vide order sheet dt.21-01-2017. Ex.R-23 is the outpatient record of one Veerappa G. @ Earappa. Ex.R-24 is the 3rd investigation additional report of Lavanya & Company Bangalore, Ex.R-25 is the investigation report of Stellar Insurance Management Service Pvt. Ltd.,
16. The Opposite Party mere relying upon the investigation reports of Lavanya & Company and Stellar Insurance Management Service Pvt. Ltd., produced under Ex.R-8, Ex.R-14, Ex.R-18 & Ex.R-24, Ex.R-25 has come to the conclusion that, the complainant is suffering from pre existing disease of “Squomous Cell Carcinoma of Hard Plate” and repudiated the claim of the complainant under the policy in question. In order to find out of the genuinety of the case of the Opposite Party we have perused the reports of the Lavanya & Co. On perusal of the investigation reports produced under Ex.R-8, R-14, Ex.R-18,Ex.R-24, & Ex.R-25 wherein one R.Ashwin Kumar has investigated the things and submits his reports contending that, the life assured late Earappa was a known cancer patient. In his report he has also mentioned that, he has conducted enquires with the relatives, neighbours, friends, of life assured late Earappa and doctors, hospitals at where he has taken treatment. No doubt the said investigator has elaborately investigated the things and submitted his reports stating that, the life assured late Earappa was suffering from cancer earlier to obtaining the policy. But we do not find any reason why, the said investigator or the Opposite Party has not produced any iota of evidence about their enquiry and affidavits of such persons who have given their statements while conducting their enquiry. In the absence of such evidence or statements in our view the very report itself is not proper and said to be not proved by proper evidence. Apart from that the said investigator in his report he has stated that, he is also conducted enquiry with the doctors. No doubt the Opposite Party has moved an application before this Forum to summoning the Medical Superintendent, Medical Records Officers, Department of Pathology, Kastruba Medical College, Manipal. But the said application has been dismissed by this forum on the ground that, the Opposite Party has not mentioned whether the proposed witness is a treated doctor, or an author of the document etc., by relying upon the judgment of Hon’ble Supreme court cited in 2004 (4) KCCR 2392. The Opposite Party has not challenged the said order and he has not taken any further steps to secure the witness summons of treated doctors or the author of the documents. Further, they have also not made any efforts to file the evidence of the doctors or hospital authorities who have enquired by the investigating authority, in the absence of such evidence about the enquiries we cannot believe that, the reports produced by the said Lavanya & Stellar Company are proper and genuine one. So authenticity of said documents is not substantially proved by Ops.
17. Further the said investigator has also relied upon the documents produced under Ex.R-15, Ex.R-16, Ex.R-17, Ex.R-20, Ex.R-21 & Ex.R-22. On perusal of the said Ex.R-15, 16 & 17 it appears that the said documents are pertaining to one Eranna Kudaremani but not the life assured Earappa Pothappa. But in order to justify his report, to show that the said documents are of life assured Earappa the Lavanya & Company investigator has produced certificate under Ex.R-20 issued by Kastruba Hospital, Manipal and copy of the affidavit and its translation vide Ex.R-21 & 22. On perusal of Ex.R-20 the certificate issued by Kastruba Medical HOsptial, Manipal wherein it has mentioned that, the said Earappa the life assured has requested the hospital authority to change the name from Earanna Kudaremani to Veeranna.G @ Earappa S/o. Pothappa Kabbera based on the affidavit produced under Ex.R-21 & Ex.R-22. It shows that, the Ex.R-20 is mainly borne out of the affidavit produced under Ex.R-21 as per the hospital. But the counsel for the complainant at the time of marking of the Ex.R-21 & Ex.R-22 he has raised his objection about its genuinity as it is produced under Xerox copy. This Forum subject to objection the said documents have been got marked as Ex.R-21 & 22 vide order sheet 21-01-2017. Though there was a sufficient opportunity and so many reasons to prove the said documents the Opposite Party neither they have produced the original or certified copy of the same nor have they adduced any evidence to prove the same. We do not find any reasons to why the Opposite Party has not taken any steps to prove the affidavit even by way of evidence of the person one who has identified the life assured at the time of preparing the alleged affidavit produced under Ex.R-21. Under such circumstances, in our view depending upon the documents produced under Ex.R-15, 16 & 17 on the basis of Ex.R-21 & R-22 is nothing but searching of the black cats in dark room. Hence it cannot be considered as the said medical reports are belongs to the life assured late Earappa as contended by the Opposite Party.
18. It is the case of the complainant that, the life assured late Earappa has medically examined at the time of taking the policy by their penal doctors of the Opposite Party and they have issued the policy after clear medical examination. This fact was not denied by the Opposite Party but they have stated that, it is generic in nature. The policy in question is of huge amount. Under such circumstances, it is not explained by the Opposite Party that, why they have not taken the detailed examination health of the life assured. If they would have done it earlier they could have resist the policy and life assured can save his huge premium money if he is really suffering disease as alleged by the Opposite Party. But here no such things happened on the contrary Opposite Party harping on the complainant about the suppression of the fact. In our view it is the duty of the Opposite Party to prove that the life assured is suffering from pre existing disease of cancer which was not proved by the Opposite Party. Further on perusal of the records of the parties, it is very clear the cause of death is a “heart attack” or “cardiac arrest” but not the cancer as conducted by the Opposite Party. The complainant all along with complaint and even earlier to that, they have not admitted any pre existing diseases and treatment taken in the various hospital as contended by the Opposite Party. Hence, once again the Opposite Party has failed to prove that, the death of the disease is of cancer who was suffering earlier to obtaining the policy.
19. The complainant in order to prove his case, he has relied upon the judgment of Hon’ble National Commission cited in 2016 (1) CTR 311 (NC), 2013 CJ 174 (NC), III 2001 CPJ 383, 2013 CJ 365 (NC), 2010 CJ 58 Chandi, and Judgments of our own Forum in CC.No.61 & 68/2015, the dictums of the Hon’ble court in the above said rulings are in respect of suppression of pre existing disease cannot be inferred, onus to prove pre existing disease is on insurance company, when the deceased medically examined by the doctor at the time of availing the policy then the insurance company cannot reject the claim, mere production of admission proof of any pre existing disease. Production of document does not amount to proving the pre existing disease. Enquiry report conducted by agent of Opposite Party is not binding on appellant etc., On perusal of the said ruling and the facts in question it is very clear that, the case of the complainant is amply applicable to the present fact of the dictum laid down by the Hon’ble Court hence we have accepted the same.
20. In order to prove the suppression of other material facts regarding pre existing disease is concerned, the Opposite Party has relied upon the so many judgments are as under:
1) 2017 (1) CPR 124 (NC) between Kunwar Pal V/s. CEO Sahara India Life Insurance Co. Ltd., India
2) 2016(1) CPR 293 (NC) between Kotak Mahindra Old Mutual Life Insurance Vs. Alkesh Bhai Shah & Ors.
3) Judgment of RP No. 3794-3796 of 2007 between Divisonal Manager LIC of India & Ors. V/s. Smt. Anupama & Ors.
4) 2008 (ACJ) 456 of Hon’ble Supreme Court between PC Chacko and another V/s. Chairman LIC of India and others.
5) 2012 (1) CPR 245 NC between Smt. Kamodadevi V/s. LIC of India & another.
6) CDJ 2009 SC 1391 of Hon’ble Supreme Court of India in civil appeal no. 2776/2002 between Satwant Kaur Sandu V/s. New India Assurance Co. Ltd.,
7) CDJ 2008 SC 1391 of Hon’ble Supreme Court in Sea Lark Fisheries V/s. United India Assurance Co. Ltd.,
8) CDJ 2003 of Hon’ble Supreme court in Panni Devi V/s. LIC & Ors.
9) CDJ 2007 of Hon’ble Supreme Court in PC Chacko & Another V/s. Chairman LIC of India & Ors.
10) 2010 (4) CPR 49 AP State Commission Hyderabad between LIC of India V/s. M.Vijaya Laxmi & Ors.
The dictum laid down under the above said rulings of Hon’ble Supreme Court, National commission and various State Commissions are not applicable to the present facts of the case. Hence, with great respect we have not accepted the same.
21. As regards to the under age of 9 years is concerned, the Opposite Party has strongly contended that, the life assured at the time of taking the policy he was the age of 53 but he has not disclosed his proper age and he was shown as 45 i.e, less than 9 years. It is contended by the Opposite Party that, by suppressing the real age the life assured has obtained the policy, which is against the principles of the uberrima fidie or UTMOST GOOD FAITH. The concealment or suppression of material facts goes at the very route of the contract and as a result such contract becomes voidable and unenforceable at the option of the party whose consent was so caused. The life assured deliberately made such mistakes in order to avail benefits of the policy in question, if he would have given proper age at the time of obtaining the policy and filling the proposal form. The Opposite Party could have rejected the policy in question. In this regard we have perused the proposal policy produced under Ex.R-5 at page no.1,2,3,5 & 12 it is very clear that the proposal was made with the help of the age proof shown under the SSLC TC and voter ID of life assured which are public documents. On perusal of the SSLC TC produced under Ex.R-31 the date of birth of the life assured is 01-08-1968 and accordingly the proposal form produced under Ex.R-4 & Ex.R-32 even in policy also the date of birth as shown 01-08-1968 at Page No.3. It is worthwhile to note here that, at the time of issuance of the policy in question the age proofs have been confirmed and admitted by school certificate and voter’s ID. The Branch Manager has verified the voter ID and TC of the life assured at the time of issuance of the policy and same was shown at page no-14 of said Ex.R-5. This fact is clearly goes to show that, at the time of issuance of the policy the life assured has submitted two documents i.e, SSLC TC and voter ID and after verification of the same the policy in question has been issued by OP. The another one document i.e, SSLC Marks Card of life assured made available before this Forum though which was not marked but on perusal of it is very clear that, the age of the life assured is 01-08-1968. And its registration no. 109875 has been mentioned in the policy at Page No.1,2 at the column age proof it means at the time of obtaining the policy the life assured has submitted the SSLC Marks Card at the time of obtaining the policy or signing the proposal and when this being the fact the Opposite Party cannot say that, the life assured has availed the policy by suppressing the real age i.e, under age of 9 years. Hence the version of the Opposite Party in this regard holds no good. No doubt the age mentioned in the voter ID and School Records are different by 9 years but on sole ground we cannot say that, the complainant has suppressed his age. He has submitted his all relevant records without any suppression pertaining to his age is concerned and based on these documents only the policy has been issued by considering the age mentioned in the SSLC certificate. So question of suppression on the part of the complaint as contended by OP does not arise. The Opposite Party by considering the difference in age mentioned in voter ID and SSLC marks card has come to the conclusion that, the complainant’s husband Earappa suppressed the fact and obtained the policy and for which they have not responsible for to compensate. In this regard the Opposite Party relied upon the ruling of Hon’ble National Commission cited in III 2009 CPJ 38 NC between LIC of India V/s. Yogendra Prasad Singh and of Hon’ble MP State Commission Bhopal cited in IV (2009) CPJ 223 between Bina Sony V/s. LIC of India and another. On perusal of the ruling of the Hon’ble National Commission it is very clear that, the alleged school certificates are fake and based on that the policy has been obtained hence that documents has not considered by the Hon’ble Commission whereas the case in hand facts are quite different it is not the case of the Opposite Party that, the school documents produced for to obtain the policy are the fake and same was also procured along with other documents. After verifying the same policy has been issued hence the dictum laid down by the Hon’ble National Commission in our view will not give any support to the case of the Opposite Party as the facts are quite different hence we have not accepted the same. Similarly the other ruling of Hon’ble MP State Commission Bhopal cited by the Opposite Party is also not applicable to the case of the complainant as the facts in question and the facts of the said ruling are entirely different hence with great respect we have not considered the same too.
22. The complainant in order to prove his case he has relied upon the rulings of Hon’ble National Commission cited in the 2015 (3) CPR 156 (NC) between Reliance Life Insurance Co. Ltd., V/s. Narpat Kereng Patel case, wherein it has held that voter ID is not the proper document to establish the age or the identity of the disease it is to be established by solid and unflappable evidence. The school certificate, ration card are the documents which can establish the proper age of the person. Hence we have accepted the said ruling as it is amply applicable to the present case in hand. Because no doubt the Opposite Party has issued the policy in question after due verification of two documents one is of voter ID and another one is school certificate that was also mentioned in policy. But at the time of settlement of the claim they have raised the objection regarding the age of the life assured as it is less than 9 years by comparing with the said two documents. From the above said rulings it is very clear that, even in case of comparison the age of the life assured should be considered by the school records not by the voter ID.
23 The Opposite Party strongly contended in their version and evidence on another point regarding limitation though they have repudiated the claim of the complainant on the ground of suppression of pre existing disease and mentioning of the under age. Hence we have decided to answer whether the complaint of the complainant is barred by limitation as contended by the Opposite Party under Point No-2.
24. On perusal of the pleadings of the parties, and documents made available before this forum the present complainant has filed his earlier complaint no. 7/2015 on 01-01-2015 on the basis of repudiation letter dt. 19-04-2014 which are produced under Ex.P-4 = Ex.R-27 which was well within the limitation period of two years as per the C.P. Act., But the complainant has withdraw the said complaint on 12-03-2015 as per Ex. P-3 i.e, memo after seeking the permission of this Hon’ble forum to file the fresh complaint on the same cause of action. Accordingly, the complainant has filed second/present complaint (No.26/2016) on 01-06-2016. On fair consideration of the date of second complaint from the date of repudiation i.e, 19-04-2014 is delayed by 42 days. Now the question before us that, if the complaint is withdrawn to file the same on same cause of action before the forum then what is the time limit when there is no specific direction from the forum at the time of withdrawal of the complaint. Under such circumstances, the time gap between filing of the complainant and withdrawal of the complainant period is to be excluded and it is to be considered for limitation. Here in the present case, the withdrawal of the first complaint is 12-03-2015 if we calculate the date of filing and date of withdrawal the earlier complaint which is pending with this forum about 02 months 11 days i.e, 71 days. The second complaint ought to have been filed on or before 19-04-2016 but he has filed on 01-06-2016 it means there was a delay of 42 days as stated supra. If we considered 02 months 11 days the time the first complaint pendency period before this forum then the limitation for filing the second complaint would be 30-06-2016. Even otherwise by considering the documents produced by Op marked under Ex.R-29-30 the last repudiation letters issued on the complainant dt.04-08-2014 and 01-08-2014 so meaning there by the cause of action arose finally for the complainant on the date of last repudiation letter 04-08-2014 ie., Ex.R-29. So by considering the said date the present complaint filed on
01-06-2016 is within the period of limitation so Op cannot go beyond the contents of his own documents. Hence in our view the present complaint is well within the period of limitation. Even inspite of absence of application for condo nation of delay the complaint of the complainant cannot be said that, it is barred by limitation. In this regard we have relied upon the ruling of Hon’ble NCDRC NEW DELHI REVISION PETITION NO. 2299 OF 2014 (Against the Order dated 19/02/2014 in Appeal No. 650/2012 of the State Commission Rajasthan) NIMS MEDICAL COLLEGE SHOBHA NAGAR, JAIPUR RAJASTHAN V/s HARSH MATHUR S/O SHRI H.P MATHUR , Hence, in our view the present complaint of the complainant is not barred by limitation. The Opposite Party in order to prove his case, he has submitted almost all 13 rulings of Hon’ble Supreme Court, National Commission cited in 2017 (1) CPR 240 (NC), 2017 CJ 259 (NC), AIR 2009 SC 2210, 2004 (3) CPR 122 NC, 2003 (2) CPR 81 (NC), 2002 (3) CPR 107 (SC), 2000 (1) CPR 296 (State Commission), 2004 (iv) CPJ 240 (State Commission), 2012 (4) CPR 626 (NC), 2010 CJ 1152 (NC), 2010 (2) CPR 371 (NC), 2010 (1) CPR 428 (State Commission), 2010 (2) CPR 402 (NC), 2010 (2) CPR 376 (NC).
The above said rulings submitted by the Opposite Party are not applicable to the case of the Opposite Party as they are not suitable to the case facts on hand. Hence, with great respect we have considered the principles laid down in the judgments while considering the above issues.
25. Therefore, based on the said facts, the Opposite Party cannot repudiate the claim of the complainant. So under these circumstances, their repudiation action amounts to deficiency of service towards the complainant. Hence by considering all the material on records and the evidenced led by both parties, with their admitted facts, in our opinion, the complainant has proved the Point No.1, accordingly, the same is answered AFFIRMATIVELY.
Point No.2 :
24. In view of our answer to Point No.1 in the affirmative, the claim of the complainant are maintainable against the Opposite Party. The complainant has produced the policy copy marked as Exhibit P-1 = Ex.R-5. As per the said policy, the sum assured amount is mentioned as Rs.13,00,000/-, so the Opposite Party is liable to make the payment of the said sum to complainant, as above policy was in force as on the date of death of policy holder.
25. The complainant further entitled a sum of Rs.10,000/- towards her pain, suffering and frustration etc., from Opposite party. In addition to above amount, the complainant is entitled Rs.5,000/- as cost of litigation from Opposite Parties. Therefore, the opposite Party is liable to pay above award amount to the complainant, which is just and proper in our view to award said amount in favour of the complainant.
26. Thus, as discussed above, we proceed to pass the following order;
ORDER
The complaint filed by the complainant U/Sec.12 of Consumer Protection Act against Opposite Party is partly allowed with cost.
Consequently, Opposite Party is liable to make payment of Rs.13,00,000/- + Rs.10,000/- + Rs.5,000/-, total Rs.13,15,000/- to the complainant with interest at the rate of 8% per annum from the date of complaint till realization of award amount, within two months from the date of this order.
Intimate the parties accordingly.
