At, Chhatisgarh State Consumer Disputes Redressal Commission Raipur
By, THE HONOURABLE MR. JUSTICE C.B. BAJPAI
By, THE HONOURABLE MR. JUSTICE NARENDRA GUPTA
By, MEMBER & THE HONOURABLE MRS. JUSTICE RUCHI GOEL
For the Appellant: Manoj Prasad, Advocate. For the Respondent: Prashant Sinha, Advocate.
1. Shri Manoj Prasad, learned counsel for the appellant.
2. Shri Prashant Sinha, learned counsel for the respondent.
3. On behalf of the appellant reply has been filed for interim application LA. No.I/2019 filed on behalf of the respondent under Order 41 Rule 27 of The Code of Civil Procedure, 1908. Copy thereof has been given to the learned counsel for the respondent. It is taken on record.
Final arguments heard.
4. Also heard on LA. No.I/2019 - an application along with certain documents filed on behalf of the respondent to take those documents as additional evidence. By filing written response the appellant had opposed the said application and would submit that there is no any clarification why these documents had not been filed before the concerned District Foum though they were in possession of the respondent/ complainant.
5. On perusal of LA. No.I/2019, there is simplicitor prayer that the respondent/complainant wants to file the documents relating to his treatment and blood test and as they are necessary to decide the matter. As there is no any reason assigned by the respondent/complainant, why these documents were not filed before the concerned District Forum, though the same were already in possession of the respondent/complainant. Additional material as additional evidence may only be taken, as an exceptional circumstances as defined in Order 41 Rule 27 of The Code of Civil Procedure, 1908. The said application is not assigning any reason. Also the documents filed does not goes to the roots of the case. Consequently, we are of the view that I. No. 1/2019 is sans substance, hence is dismissed.
6. So far as the facts requires to decide the present appeal are as the policy holder/ respondent/complainant was suffering from alcoholic cirrhosis that is why the claim of the respondent / complainant was repudiated by the appellant/O.P./Insurance Company. Learned counsel for the appellant/O.P. had shown document Annexure NA-l filled up by the doctor himself on the basis of the information given by the relatives of the patient, goes to show that the patient was suffering with alcoholic cirrhosis and the doctor found evidence of alcohol in history. In Annexure NA-2 history of past illness how as Cirrhosis of Liver. In Annexure N.A-3 Doctor's Progress Notes, the treating doctor held that the patient is Chronic Alcoholic. Learned counsel for the appellant/O.P. would submit that as per para 6 of the Family Health Optima Insurance Plan Annexure NA-9 on account of of any ailment after use of alcohol is excluded hence learned counsel for the appellant/ O.P. would submit that the concerned District Forum has committed mistake of law and facts as the respondent/complainant falls under the category of exclusion as he was suffering from Cirrhosis of Liver on account of his alcoholic state, hence the appeal filed by the appellant/O.P. may be allowed. The impugned order passed by the concerned District Forum, may be quashed.
7. Per contra, learned counsel for the respondent/complainant would submit that from 05.01.2016 the respondent/complainant was under treatment. He has developed Hipatitis B and on account of this Jaundice developed, liver was damaged, but the said damage was not on account of Cirrhosis of Liver. Earlier also, the respondent/complainant had not taken any claim in the said insurance policy. The said policy is still in continuance. He had also paid premium for the present policy as the ailment was on account of Hepatitis B, the concerned District Forum has rightly allowed the complaint, hence the impugned order passed by the concerned District Forum, may be affirmed and the appeal filed by the appellant/O.P. may be dismissed.
8. Perused the impugned order dated 11.10.2018, passed by the concerned District Forum in Complaint Case No.CC/18/226 and record of the concerned District Forum.
9. Undisputedly looking to para 6 of the terms and conditions of the insurance policy, any ailment on account of use of alcohol is in exclusion list. The appellant/ O.P. had filed material documents regarding the treatment of the respondent/complainant fill up by the doctor, goes to show that he was known old patient of Cirrhosis of Liver on account of use of alcohol, may be Hepatitis B developed on account of many causes but to develop Hepatitis B or Cirrhosis of Liver excessive alcohol consumption is also the one cause. The respondent/complainant has to prove that the ailment was not on account of excessive use of alcohol. The* burden lies on the respondent/complainant. On the other hand the appellant/O.P. undisputed demonstrated that the respondent/complainant was old history of use of alcohol and Alcoholic Cirrhosis. These documents are not contradicted by the respondent/complainant, as they are from the pen of the doctor, who was treating the respondent/complainant. With this undisputedly it is proved that the ailment was caused by excessive use of alcohol and thereby Cirrhosis of Liver developed. The respondent/complainant failed to demonstrate that the Cirrhosis of Liver caused on account of any infection of virus or otherwise. The concerned District Forum has not taken care of documentary evidence, which was against the respondent/complainant. The concerned District Forum "has committed a mistake of law and facts while allowing the complaint and directed to pay the amount as per para 17 of the impugned order, which r
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equires interference from our ' side as the said order is not maintainable in the eye of law and facts. 10. Consequently, we hereby dispose off the appeal as follows :- (1) The appeal filed by the appellant/O.P., is hereby allowed. (2) The impugned order dated 11.10.2018/ passed by the concerned District Forum, in Complaint Case No.CC/18/226, is hereby quashed. (3) No order as to the cost of this appeal. (4) The appeal is accordingly allowed. Copies of this order be provided to the parties forthwith, free of cost. Appeal allowed.