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Charu Sharma & Others v/s Birla Sun Life Insurance Company Ltd., Maharshtra & Others

Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

Company & Directors' Information:- O LIFE PRIVATE LIMITED [Active] CIN = U52399PN2013PTC146147

Company & Directors' Information:- SUN PVT LTD [Active] CIN = U24246RJ1984PTC003093

Company & Directors' Information:- G SUN INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071425

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- SHARMA & CO. PVT LTD. [Strike Off] CIN = U28991WB1949PTC018064

Company & Directors' Information:- SUN INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1943PTC000994

    First Appeal Nos. 163, 263 of 2013

    Decided On, 23 September 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appellants: Arvind Gupta, Advocate. For the Respondents: P.K. Seth, Advocate.

Judgment Text

Oral:Late Shri Deepak Kumar, husband of the complainant obtained an insurance policy from Birla Sun Life Insurance Co. Ltd. appellant in FA/263/2013 and respondent No.1 in FA/163/2013, paying a premium of Rs.13,423/-. The policy was issued on 12.8.2009, pursuant to a proposal submitted by late Shri Deepak Kumar on 31.7.2010. Shri Deepak Kumar having died in Paras Hospital in Gurgaon on 24.8.2010, a claim in terms of the policy taken by him, was submitted by the complainant to the insurer. The claim however, was repudiated vide letter dated 28.2.2011, which to the extent it is relevant reads as under:“This has reference to your claim dated 21.12.2010 for the benefits under the above policy. We have carefully examined the same, but have decided to repudiate our liability under the Policy for the following reasons:The above policy was issued on the basis of an application for insurance dated 31.7.2010 by Mr. Deepak Kumar (the “Life Assured”). In the said application for insurance, the Life Assured had replied in the negative to Q. Nos. (XII) D 1, 2(a), and 3(a) & (j). For your ready reference, we are quoting below the aforesaid questions and the replies thereto in the application:(XII) MEDICAL AND PERSONAL HISTORY OF THE LIFE TO BE INSURED(D) MEDICAL INFORMATION:1. Are you on a diet or any other medicine of any kind prescribed by a doctor? NO2. Within the past 5 years, have you:(a) Consulted any doctor or other health practitioner except for common cold, influenza lasting than four days?............. NO3. Have you ever had or sought advice for the following.(a) Chest pain, high blood pressure, stroke, heart attack, heart murmur or other heart disorder?............. NO(j) Arthritis, gout or join pain, muscle, bone fracture or disorders?........ NOHowever, our investigations have established that the Life Assured had suffered a Cerebro Vascular Accident with thrombolysis and was suffering from pain in Bilateral Lower Limbs much prior to his application for insurance, and that the aforesaid replies in the application for insurance are false.We may also state that had the Life Assured replied to the aforesaid questions in the application for insurance truthfully and correctly, the company would not have issued the policy at all.”2. Being aggrieved from the repudiation of the claim, the 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.4. Vide impugned order dated 17.1.2013, the State Commission directed the insurer to pay a sum of Rs.3,00,000/- to the complainant along with interest @ 9% per annum from the date of the complaint though the complainant had claimed a sum of Rs.25,00,000/-. Being aggrieved from the order passed by the State Commission, both the parties are before this Commission by way of these cross-appeals.5. It would thus be seen that the only issue involved in these appeals is as to whether late Shri Deepak Kumar had consulted any doctor or had sought any advice for the ailments mentioned in para 2 & 3 of the proposal submitted by him on 31.7.2010.6. The learned counsel for the insurer has drawn my attention to the claim form dated 16.4.2011 on page 70 of the paper book. The aforesaid document records the history of the illness at the timeMr. Deepak Kumar was admitted in the hospital as well as the past history and to the extent it is relevant, the said history reads as under:“CR/IP NO. 107175-10/35409Name : Deepak SharmaAge/Sex : 27 Years (M)Room : MICU 02DOA/TOA : 18.8.2010 – 2144Unit / Cons : Dr. Rajnish Kumar (FT) – Neurology Statement FormDated 18.8.2010 Time : 10.15 PMPresenting complaintsSudden ovrit …….Inj. Episodes – 16.08* 11 AM today* Rt. Sided weaknessCht. B/L R >L painHistory of present illness28 years old mole, no diag med.IllnessEvalvatigated for B/L L / Limp pair since 1 years (Neurologist) had sudden onset weakness – Ist . on 16-VIII-10 severe If. Sided weaknessAgain, patient had weakness, drowsiness since 11 AM todayH/O CVA Thrombosis 2009Past HistoryB/L Lower Limb Pain 1 year.”7. The above referred form purports to be signed by a doctor of Paras Hospital. The name of the Doctor appears to be Dr. Tina and the document appears to be dated 18.8.2010. The aforesaid document, if true and correct, would show that Late Shri Deepak Kumar was suffering from Lower Limb pain for more than 1 years and had been under treatment of a Neurologist. As per the history recorded in the above referred hospital he had thrombosis in 2009. However, the above referred document has not been proved in accordance with law since neither the person wo wrote the history / past history nor anyone conversant with his handwriting and signature was produced before the State Commission. Though the document bears the stamp of Paras Hospital, Gurgaon, it was necessary to prove the handwriting and signature of the person who had purportedly recorded the history / past history of Late Shri Deepak Kumar on the said document.8. In these circumstances, it becomes necessary to examine the author of aforesaid history / past history or in case, he is not available to examine, some other person who is conversant with the handwriting of the author of the said history / past history. Only thereafter, it can be decided as to whether the history as recorded on the above referred document was actually given at the time of admission / treatment of late Shri Deepak Kumar in the Paras Hospital, Gurgaon or not.9. 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 summoning the Doctor who purportedly recorded the history / past history of late Shri Deepak Kumar available on page-70 of the paper book. In case, the author of the said history / past history has already left Paras Hospital, his address would be obtained from the hospital and then he will be summoned as a witness before the State Commission. If his address is also not available in the record of Paras Hospital, or it is not possible to ensure his presence before the State Commission, some othe

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r doctor, who is conversant with his handwriting will be summoned and examined by the State Commission in respect of the document available on page-70 of the paper book. Both the parties shall be entitled to cross examine the witness, who is summoned and examined by the State Commission in terms of this direction. The consumer complaint shall be decided afresh in the light of the deposition of the aforesaid witness. The parties are directed to appear before the said State Commission on 28.10.2020. Considering the age of the case, the State Commission shall decide the consumer complaint afresh within three months of the parties appearing before it.Both the appeals stand disposed of.