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Darshan Singh v/s HDFC Standard Life Insurance Company Limited & Another

    Revision Petition No. 205 of 2019

    Decided On, 30 January 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Appearing Parties: Dushyant Tiwari, Advocate.



Judgment Text

Oral:

Late Shri Ajaib Singh son of late complainant Smt. Gurmail Kaur, had obtained two insurance policies from the respondent; one on 16.5.2013 and the other on 19.6.2013. He having expired on 24.7.2013, a claim was lodged by late Smt. Gurmail Kaur with the respondent company. The claim however, was rejected on the ground that the deceased insured was suffering from Cancer at the time he took the insurance policies and the aforesaid material fact was withheld by him from the insurer while taking the policy. Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint. The complaint was resisted by the insurer primarily on the ground on which the claim had been repudiated.

2. Vide order dated 29.01.2015, the District Forum allowed the complaint. Being aggrieved from the order passed by the District Forum, respondent approached the concerned State Commission by way of an appeal. Late Smt. Gurmail Kaur died during the pendency of the appeal but her legal representatives were not brought on record, as, intimation of the death was not given either to the respondent or to the State Commission.

3. The appeal filed by the respondent having been allowed by the State Commission, the legal representative of the deceased complainant approached this Commission by way of a revision petition No.46 of 2017, which came to be decided vide order dated 01.3.2017.

4. The order of this Commission dated 01.3.2017, to the extent it is relevant reads as under:

'4. The only question which arises for consideration in this petition is as to whether late Sh. Ajaib Singh was suffering from Cancer at the time he took policy or not. In order to prove the alleged ailment, the insurer relied upon the report of an investigator and the medical record collected by him. The affidavit of the investigator was filed before the District Forum but neither any official from the hospital was summoned nor his affidavit or affidavit of any doctor or official of the hospital which purportedly issued the medical record, was filed.

5. In her affidavit by way of evidence, late Smt. Gurmail Kaur had clearly stated that her son was not suffering from Cancer and that he was not admitted in Acharya Tulsi Regional Cancer Treatment and Research Centre Bikaner which had purportedly issued the medical record collected by the investigator. Despite the aforesaid affidavit of the complainant, the insurer did not seek to examine any official from the aforesaid hospital to prove the record alleged to have been collected by the investigator. No doctor who may have treated late Sh. Ajaib Singh in Acharya Tulsi Regional Cancer Treatment and Research Centre Bikaner was examined as a witness nor the affidavit of any such doctor was filed. In my view, once the complainant had filed an affidavit denying on oath the alleged admission and treatment of late Sh. Ajaib Singh in Acharya Tulsi Regional Cancer Treatment and Research Centre Bikaner, it was imperative for the respondent to lead evidence to prove his admission and treatment in the aforesaid hospital, which could be done either by summoning an official of the hospital or one or more of the doctors who allegedly treated him in the said hospital.

The learned counsel for the respondent relies upon the decision of this Commission in Life Insurance Corporation of India Vs. Krishan Chander Sharma 2 (2007) CPJ 51 NC where this Commission inter-alia held that the failure to examine the doctor was not fatal to the case of the insurer when a certificate from the medical official had been produced. However, there is nothing in the judgment to indicate that the complainant in the above referred matter had denied on oath the alleged admission and treatment of the insured in the hospital. Therefore, the decision relied upon by the learned counsel for the respondent is clearly distinguishable on facts.

6. For the reasons stated hereinabove, it becomes necessary to remit the matter back to the District Forum to decide the matter afresh after giving an opportunity to the parties to lead evidence on the question as to whether Sh. Ajaib Singh was suffering from Cancer at the time he took the insurance policies or not. The impugned orders are therefore, set aside and the matter is remitted back to the concerned District Forum for deciding the complaint afresh after giving an opportunity to the parties to lead evidence on the aforesaid issue. The parties are directed to appear before the concerned District Forum on 11.04.2017. The District Forum is directed to decide the complaint afresh within three months of the parties appearing before it. Copy of this order be given ‘dasti’.'

5. Pursuant to the aforesaid order of this Commission, the District Forum vide its order dated 06.6.2017 again allowed the consumer complaint. Aggrieved from the order passed by the District Forum on 06.6.2017, the respondent approached the concerned State Commission by way of an appeal. Vide order dated 21.11.2017, the State Commission allowed the appeal, set aside the order passed by the District Forum and remitted the matter back to it with a direction to the respondents to produce their evidence before the District Forum.

6. The Revision Petition No.3880 of 2017 was filed by the petitioner before this Commission against the order of the State Commission dated 21.11.2017. The said revision petition was disposed of vide order dated 09.5.2018, which to the extent it is relevant reads as under:

'It transpired during the course of hearing that Pradeep Bharadwaj, Record Keeper in Acharya Tulsi Regional Cancer Treatment & Research Institute, Bikaner has already been examined as a witness before the District Forum, pursuant to the liberty granted by this Commission vide its order dated 03.01.2018 in Revision Petition No. 446 of 2017. The learned counsel for the complainant / petitioner requests that he may be given an opportunity to cross-examine the aforesaid witness. The permission is granted accordingly. The matter is already fixed before the District Forum on 18.5.2018. On that date, the District Forum shall proceed to recall Mr. Pradeep Bharadwaj for the purpose of recording his cross-examination by the complainant. Thereafter, the District Forum shall decide the complaint afresh, after considering the evidence produced by the parties, including the deposition of Pradeep Bharadwaj.'

7. Pursuant to the order of this Commission dated 09.5.2018, Mr. Pradeep Bhardwaj, record keeper from Acharya Tulsi Regional Cancer Treatment & Research Institute, Bikaner was cross-examined by the petitioner. Thereafter, the District Forum, vide its order dated 12.7.2018 again allowed the consumer complaint. The respondents again approached the concerned State Commission by way of an appeal. The said appeal having been allowed and the complaint having been dismissed by the State Commission vide its order dated 22.11.2018, the petitioner is before this Commission by way of this revision petition.

8. As noted earlier, the only issue involved in this petition is as to whether late Shri Ajaib Singh was suffering from cancer and whether he was admitted in Acharya Tulsi Regional Cancer Treatment & Research Institute or not. Shri Pradeep Bhardwaj from Acharya Tulsi Regional Cancer Treatment & Research Institute produced record pertaining to one Ajaib Singh, son of Jagga Singh, aged 36 years, resident of Village Dehla in District Sangrur, before the concerned District Forum and stated that as per the record he was suffering from Esophagus Cancer and first Chemotherapy was given to him on 05.11.2012 followed by blood transfusion on 16.11.2012. The learned counsel for the petitioner on instructions does not dispute that the name of father of the deceased Ajaib Singh was the same as is recorded in the record produced by Shri Pradeep Bhardwaj of Acharya Tulsi Regional Cancer Treatment & Research Institute. It is also not disputed that his age was about 36 years in November, 2012 when he is shown registered with Acharya Tulsi Regional Cancer Treatment & Research Institute. It is also not disputed that he was a resident of Village Dehla in District Sangrur of Punjab. Though, it is alleged that the name of the Tehsil has been incorrectly recorded in the record of Acharya Tulsi Regional Cancer Treatment & Research Institute, that in my opinion would not be material, considering that admittedly there is

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only one village namely Dehla in District Sangrur of Punjab. I am therefore, satisfied that the record produced by Shri Pradeep Bhardwaj, record keeper of Acharya Tulsi Regional Cancer Treatment & Research Institute pertained to treatment of late Shri Ajaib Singh, son of late Smt. Gurmail Kaur. Therefore, it can hardly be disputed that the deceased insured was suffering from Esophagus cancer and the said serious ailment was withheld by him, while obtaining insurance policy from the respondent. Therefore, repudiation of the claim on account of the concealment of the Esophagus cancer, which by itself is a deadly disease and can cause death of the person suffering from such a disease, was justified. The view taken by the State Commission, therefore, does not call for any interference by this Commission in exercise of its revisional jurisdiction. The revision petition being devoid of any merit is hereby dismissed, with no order as to costs.
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