ORAL ORDER
Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
Heard Ms.Rashmi Manne-Advocate for the appellant and Mr.Dilip Mahadik-Advocate for the respondent.
This appeal takes an exception to an order dated 30/06/2005 passed in consumer complaint no.619/1996, Shri S.K.Patel v/s.New India Assurance Co.Ltd. by District Consumer Disputes Redressal Forum, Mumbai Suburban. Alleged deficiency in service pertains to wrongful and arbitrarily repudiating the insurance claim which arose out of mediclaim policy. Upholding the case of Insurance Company about the breach of utmost good faith, the consumer complaint stood dismissed.
Heard both the parties. Perused the record. Admitted facts are that since from the year 1985 mediclaim policy was taken by the appellant /complainant and it was renewed for each year. However, while issuing the mediclaim policy for the period 16/11/1990 to 15/11/1991, fresh proposal form was filled by the complainant. During the subsistence of the said mediclaim policy due to heart attack complainant was admitted firstly in Bhartiya Arogya Nidhi Parikh GeneralHospital on 08/06/1991 and, thereafter, for further treatment shifted to BreachCandyHospital on 23/6/1991. Mediclaim was lodged on 23/6/1991 to get indemnified the hospital expenses. It is the contention of the Insurance Company that while filling fresh proposal form before issuing the policy in question, in answer to question no.11, the insured had replied that he did not suffer from any heart ailment. When confronted with this particular version of the Insurance company raised in the written version, complainant clarified in his affidavit that in the said proposal form only information of health status for 11 months prior to filling said proposal form was asked and, therefore, since he was not suffering from any ailment in those last 11 months, he had answered the same accordingly. Proposal form of the relevant time is not produced on record by either of the parties, particularly, by the insurance company. In this background it is submitted by both the parties that opportunity be given to lead evidence on that particular disputed issue. To establish the breach of utmost good faith, one needs to have that document of proposal form on record since complainant and the Insurance Company are offering different versions about the contents of the proposal form. It is not disputed that the policy in question was not a renewed policy but was a fresh policy. Therefore, to do the substantial justice, we find it proper to accept the contention of both the parties to lead further evidence on the issue of breach of utmost good faith. We hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 30/06/2005 is set aside. Consumer complaint is remitted back to the forum in the light of the observations made in the body of the order.
Both the parties shall appear before the forum on 14/08/2013. On their appearance forum shall give reasonable opportunity to lead evidence to both the parties as per the provisions of section 13(4) of the Consumer Protection Act, 1986 and, thereafter, hearing both the parties shall settle the dispute according to law. Hearing of the consumer complaint be expedited.
In the given circumstances, both the parties to bear their own costs.
Pronounced on 8th July, 2013.
