State Consumer Disputes Redressal Commission
Iffco Tokio Gen Ins Co Ltd vs Kiran Ashok Shankhla on 31 July, 2023
Details DD MM YY
Date of disposal 31 07 2023
Date of filing 05 08 2017
Duration 26 11 05
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
APPEAL NO. 540 of 2017
Iffco Tokio General Insurance Company Limited
210, 211, Govinda Complex,
Opp. Panchratna Complex,
G.I.D.C. Vapi, - 396195m
Dist - Valsad. ...Appellant
Vs.
Smt. Kiran Ashok Shankhla
Shankhla Brothers,
351, G.I.D.C. Vapi, 396195,
Dist - Valsad. ...Respondent
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BEFORE: Mr. I. D. Patel, Judicial Member
Ms. A. C. Raval, Member
APPEARANCE: Mr. R.P. Raval L.A. for the appellant,
Mr. A.N. Patel L.A. for the respondent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The appellant - original opponent has preferred the present appeal as per the provisions of Section 15 of the Consumer Protection Act, 1986 (the Act, 1986) against the impugned order passed by the learned District Consumer Disputes Redressal Forum, Valsad (for Kushal A/540/2017 Page 1 of 20 short "learned District Forum") in Consumer Complaint No.3 of 2016 dated 21.06.2017 on the grounds stated in the appeal memo. The appellant is the original opponent, whereas, the respondent is the original complainant. Hence, for the sake of convenience, parties are hereinafter referred to by their original nomenclature / status.
2. The brief facts of the complaint are that the complainant's husband deceased Ashok S. Shankhla had taken mediclaim policy of a sum insured of Rs.4,00,000/- from the opponent - insurance company, which is a portability policy and during the policy period from 11.12.2013 to 10.12.2014, as on 13.11.2014 to 19.11.2014, the complainant's husband insured Ashok S. Shankhla admitted in the Kokilaben Dhirubhai Ambani hospital at Mumbai for the treatment of heart and thereafter, the complainant's husband admitted in the Lilavati hospital as an indoor patient from 20.11.2014 to 27.11.2014 for the heart treatment and on 27.11.2014, deceased Ashok S. Shankhla died during the treatment. It is the further case of the complainant that the complainant spent Rs.7,07,311/- for the treatment of her husband, since, sum insured of the policy is of Rs.4,00,000/-, the complainant lodged the claim of Rs.4,00,000/- for reimbursement of the medical treatment expenses of deceased Ashok S. Shankhla from the opponent - insurance company alongwith requisite documents, but the opponent - insurance company had repudiated the claim of the complainant vide letter dated 15.04.2015 on the ground of suppression of pre-existing diseases namely Diabetes, Hypertension and Obesity by the insured. Therefore, being aggrieved and dissatisfied by the said repudiation letter of the insurance company, the complainant filed the complaint before the learned District Forum.
Kushal A/540/2017 Page 2 of 203. The learned District Forum issued notice to the opponent -
insurance company, whereby, in pursuance of the said notice, the opponent - insurance company has appeared through the learned advocate Mr. A.S. Kapadiya and filed written statement against the complaint denying all the allegations of the complainant to the effect that the insurance company has committed deficiency in service by rejecting the claim of the complainant. Furthermore, the insurance company has also contended in their written statement that the insurance company has repudiated the claim of the complainant as per the terms and conditions of the insurance policy and more particularly, on the ground of suppression of material fact by the insured deceased in the proposal form regarding his illness and accordingly, the insurance company prays for dismissal of the complaint with cost.
4. That, learned District Forum after going through the material on record and after hearing the learned advocate for parties, partly allowed the complaint filed by the complainant and directed the insurance company to pay a sum of Rs.4,00,000/- with 9% interest to the complainant vide order dated 21.06.2017. Therefore, being aggrieved and dissatisfied by the said order of the learned District Forum passed in Consumer Complaint No.3 of 2016, the original opponent - Iffco Tokio General Insurance Company Limited filed the appeal on the grounds stated in the appeal memo.
5. We have heard the arguments of the learned advocate Mr. R.P. Raval on behalf of the insurance company and also heard the arguments of the leaned advocate Mr. A.N. Patel on behalf of the respondent - original complainant.
Kushal A/540/2017 Page 3 of 206. That, the learned advocate Mr. R.P. Raval for the appellant -
insurance company has submitted that the impugned order passed by learned District Forum in Consumer Complaint No.3 of 2016 dated 21.06.2017 is not just and proper on the grounds stated in the appeal memo. Furthermore, learned advocate of the appellant - insurance company has also submitted that the findings recorded by the learned District Forum in para-7 of the impugned order for allowing the complaint of the complainant are not based on the evidence on record and more particularly, the documentary evidence produced by the insurance company and therefore, the said findings recorded by the learned District Forum for allowing the complaint are erroneous and perverse and therefore, according to the submissions of the learned advocate of the appellant - insurance company, the impugned order requires to be quashed and set aside in this appeal.
7. Furthermore, the learned advocate of the appellant - insurance company has submitted that in the proposal form of the policy in question, more particularly, in page-47, the insured had answered in "NO" with regard to question nos. i, vi and 16 and he himself, on page-48 of the proposal form, had made declaration that he had given true and correct answer of all the questions regarding illness and other particulars in the proposal form and as per the declaration, the policy issued by the insurance company is on the basis of the said proposal form and the same proposal form is also duly signed by the insured after understanding all the information stated in the proposal form.
Kushal A/540/2017 Page 4 of 208. That, the learned advocate of the appellant - insurance company has drawn the attention of this Commission to the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla on page-39 to 43 and submitted that as per page-39 (R-2), the deceased was a known case of Diabetes and Hypertension since 20 years and in the said page-39, it is also mentioned that all the brothers of the deceased are also suffering from Diabetes. Furthermore, the learned advocate of the appellant - insurance company has also drawn the attention of this Commission on page-41, R-4 of the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla, wherein also, it is categorically mentioned that the deceased Ashok S. Shankhla was suffering from Diabetes since 20 years and was also suffering from Obesity. The learned advocate of the appellant - insurance company has also submitted that the obesity is also one of the material fact, which the insured has not disclosed in the proposal form. Furthermore, learned advocate of the appellant - insurance company has also drawn the attention of this Commission on page-43 of the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla and submitted that on the top of the right side of the said medical treatment paper, the name of the insured is mentioned, therefore, the finding recorded by the learned District Forum in para-7 of the order that in the said page, the name of the deceased Ashok S. Shankhla is not mentioned, is not correct. Furthermore, learned advocate of the appellant - insurance company has submitted that in the said page-43 of the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla, it is mentioned that the deceased insured was suffering from Kushal A/540/2017 Page 5 of 20 Hypertension from 10 years and Diabetes from 20 years. The learned advocate of the appellant - insurance company has also drawn the attention of this Commission to the general condition of the insurance policy at page-68, wherein, as per condition no.4, the policy shall be void and all premium paid by you to us be forfeited in the event of untrue or incorrect statements, misrepresentation, mis-description or non-disclosure of any material fact. So, as per the submission of the learned advocate of the appellant - insurance company, insured had not disclosed that he was suffering from Diabetes, Hypertension and Obesity in the proposal form and thereby, he has violated condition no.4 of the policy in question.
9. That, the learned advocate of the appellant - insurance company has also submitted that the learned District Forum has recorded the finding in para-7 of the order that it is not mentioned in R-2 - medical certificate that who had given the family history of the DLA, but the said medical papers is supplied by the complainant herself to the insurance company therefore, there is no reason to disbelieve the family history of the DLA regarding his pre-existing illness. The learned advocate of the appellant - insurance company has also submitted that in the health checkup summary dated 15.11.2014, it is not mentioned that since how many years, DLA was suffering from Diabetes, that finding is also incorrect because in the medical treatment papers of the Kokilaben Dhirubhai Ambani hospital, it is categorically mentioned that the deceased was suffering from Diabetes since 20 years.
10. That, the learned advocate of the appellant - insurance company has also stated that the insurance company has also raised all the contention in para-10(2)(3) of the written statement. So, as per the Kushal A/540/2017 Page 6 of 20 submissions of the learned advocate of the appellant - insurance company, the insurance company has successfully proved the reason stated in the repudiation letter by producing cogent and reliable material before the learned District Forum. Howsoever, the learned District Forum has not rightly considered the same and recorded erroneous finding by allowing the complaint.
11. The learned advocate of the appellant - insurance company has also placed reliance upon the judgment passed in Appeal No.500 of 2016 in the case of TATA AIG General Insurance Company Limited Vs. Arjanbhai Ravajibhai Barvadiya dated 31.03.2023 of this Commission and drawn the attention towards para-9 of the said judgment and submitted that when the insured has suppressed the material fact regarding his illness in proposal form, then, repudiation of the claim by the insurance company is quite legal and valid. Furthermore, learned advocate of the appellant - insurance company placed reliance upon the decisions of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi (for short "Hon'ble National Commission") in the case of Bharti AXA General Insurance Company Ltd. Vs. Bhag Chand, reported in IV (2016) CPJ 219 and in the case of Kamlesh Gupta Vs. ICICI Lombard General Insurance Co. Ltd. & Ors., reported in I (2017) CPJ 123 and submitted that even if the insured had not received any terms and condition of the insurance policy, then, it was the duty of the complainant to get the same from the insurance company and non-receipt of the terms and condition of the insurance policy cannot be said to be a legal defense on the part of the complainant. So, as per the submissions of the learned advocate for the appellant - insurance company, the appeal Kushal A/540/2017 Page 7 of 20 preferred by the appellant - insurance company may kindly be allowed.
12. Per contra, learned advocate Mr. A.N. Patel for the respondent -
original complainant has submitted that the impugned order passed by the learned District Forum dated 21.06.2017 in Consumer Complaint No.3 of 2016 allowing the complaint of the complainant is quite just and proper and findings recorded in para- 7 of the impugned order of the learned District Forum are also just and proper and based on the evidence on record. The learned advocate for the respondent - original complainant has also submitted that before the learned District Forum, the insurance company has miserably failed to prove the grounds stated in the repudiation letter by adducing cogent and reliable evidence and more particularly, the medical treatment papers of the DLA Ashok S. Shankhla. The learned advocate for the respondent - original complaint has submitted that in document R-8, there is no policy condition clause-4 regarding suppression of the material fact. He has also submitted that looking to the document R-2, there is nothing on record that who had given the family history of the DLA and as per the medical treatment papers relied by the insurance company, the insurance company failed to prove that the deceased was suffering from Diabetes and Hypertension and he had suppressed the material fact in the proposal form. Furthermore, he has also submitted that the insurance company has also not produced the affidavit of the concerned doctor, who had given the treatment to the DLA in the relevant hospitals.
13. That, the learned advocate for the respondent - original complainant has submitted that in document R-2, there is no Kushal A/540/2017 Page 8 of 20 signed of the person, who had given history of the illness of the deceased and on page-43, document R-3, there is no name of the insured in the column of name. Furthermore, the learned advocate for the respondent - original complainant has also submitted that even presuming for the sake of argument that the DLA had suppressed the illness of Diabetes and Hypertension in his proposal form, even though, the insurance company failed to prove the nexus of the suppression of the illness and cause of death of the DLA and in support of the said contention, the learned advocate for the respondent - original complainant has placed reliance upon three decisions of the Hon'ble National Commission in the case of (i) Neelam Chopra Vs. Life Insurance Corporation of India, reported in 2018 (4) CPJ 321, (ii) New India Assurance Co. Ltd. & Anr. Vs. Rajinder Singh S/o Tarlochan Singh, rendered in Revision Petition No.2495 of 2018 and (iii) Life Insurance Corporation of India Vs. Naseem Bano, reported in 2012 (3) CPJ 208, and accordingly, the learned advocate for the respondent - original complainant submitted that the impugned order passed by the learned District Commission is just and proper and therefore, the same deserves to be upheld in this appeal and accordingly, the appeal filed by the insurance company may dismiss with heavy cost.
14. We have considered the arguments of the learned advocate Mr. Mr. R.P. Raval for the appellant - insurance company as well as learned advocate Mr. A.N. Patel for the respondent - original complainant and we have also gone through the impugned order passed by the learned District Forum in Consumer Complaint No.3 of 2016 dated 21.06.2017. That, this Commission has also considered the Kushal A/540/2017 Page 9 of 20 documentary evidence produced by the parties before the learned District Forum.
15. That, in this case, the appellant - insurance company had repudiated the claim of the deceased Ashok S. Shankhla namely insured on the ground stated in the repudiation letter. As per the proposal form, body weight of the insured was 68 kg., whereas, as per the health checkup summary of the Kokilaben Dhirubhai Ambani Hospital dated 13.11.2014, the patient was 125.3 kg. and the insured has not disclosed in the proposal form that he was suffering from Diabetes from 20 years and Hypertension from 10 years. So, as per the repudiation letter, the insured has suppressed the material fact in respect of his prior illness in the proposal form in violation of the terms and condition of the clause-4 of the policy conditions. Therefore, the complainant filed the complaint before the learned District Forum, Valsad being Consumer Complaint No.3 of 2016 and the learned District Forum has allowed the complaint of the complainant vide order dated 21.06.2017 and the said impugned order passed by the learned District Forum has been challenged by the insurance company on the grounds stated in the appeal memo.
16. Since, the insurance company repudiated the claim of the deceased Ashok S. Shankhla on the ground stated in the appeal memo, herein in this appeal, this Commission has to go through and examine as to whether the insurance company has successfully proved the ground stated in the repudiation letter by producing cogent and reliable evidence or not.
Kushal A/540/2017 Page 10 of 2017. That, the insurance company has produced the proposal form of the mediclaim policy of the insured at page-45 to 48 and on perusal of the same, at page-46 and 47, the insurance company had asked the questions regarding medical history of the insured and in column of medical history of the proposal form, in question no. i and vi, the insurance company had asked specific question to the insured that whether he was suffering from Hypertension, chest pain, ischemic heart disease or any other cardiac disorder and diabetes, thyroid disorder or any other endocrine disorder and the insured had answered in "NO" of the said questions. Furthermore, the insurance company has also asked additional facts of the insured, which affect the proposed insurance and should be disclosed to the insured, but that question is also answered in "NO" by the insured.
18. That on page-48, the insured has also made declaration in the proposal form, wherein, it is stated that all the facts stated by the insured in the proposal form are true and complete in all respect to the best of his knowledge and the insured understand the information provided by him will form the basis of the insurance policy and on page-48, the insured has also put his signature in the proposal form. So, as per the said proposal form, the insured is supposed to provide all true and complete information including the answer of the question put forth to the insured regarding his medical history.
19. That, as per the decisions of the Hon'ble Apex Court in the case of Satvantkaur Sandhu Vs. New India Assurance Co. Ltd., reported in 2009 (1) SCC 316 and in the case of Reliance Life Insurance Company Vs. Rekhaben Nareshbhai Rathod, reported in AIR 2019 Kushal A/540/2017 Page 11 of 20 SC 2039, the contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts, it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person. Furthermore, as per the said decisions of the Hon'ble Apex Court, "Proposal form" means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted. Explanation:
"Material" for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer.
20. That, it is also further held by the Hon'ble Apex Court in the said decisions that the proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form, the insured declares that she / he warrants truth. The Kushal A/540/2017 Page 12 of 20 contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. So, there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.
21. That, the insurance company has also produced the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla from page-39 to 43 and on perusal of the same, it appears that on page-39, document R-2, it is mentioned that the deceased Ashok S. Shankhla was a known case of Diabetes and Hypertension since 20 years and in the said page, it is also mentioned that there is a family history of all the brother suffering from Diabetes. Even on page-41, document R-4, it is mentioned that the deceased Ashok S. Shankhla was suffering from Diabetes since 20 years and was also suffering from Obesity and on page-43 of the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla, in column of systemic illness, it is mentioned that the deceased Ashok S. Shankhla was suffering from Diabetes since 22 years and Hypertension since 10 years. So, on perusal of the said document of the Kokilaben Dhirubhai Ambani hospital medical treatment papers regarding treatment and case history of the deceased Ashok S. Shankhla, it appears that the insured Ashok S. Shankhla was suffering from Diabetes since more than 20 years and Hypertension since more than 10 years and was also suffering from Obesity. Now, if we further perused the policy condition of the insured, more particularly, page-68 of the general conditions, in clause-4, it is Kushal A/540/2017 Page 13 of 20 mentioned that the policy shall be void and all premium paid by you to us be forfeited in the event of untrue or incorrect statements, misrepresentation, mis-description or non-disclosure of any material fact. So, looking to the above document produced by the insurance company before this State Commission, the insured Ashok S. Shankhla was suffering from Diabetes, Hypertension and Obesity before filing the proposal form in question. He had not disclosed the said fact in his proposal form (page-45 to 47). So, the deceased Ashok S. Shankhla has committed breach of general condition of the insurance policy by not disclosing the material fact in the proposal form. Therefore, the insurance company has successfully proved before the learned District Forum a ground stated in the repudiation letter for rejection of the claim of the insured Ashok S. Shankhla.
22. Now, if we perused the findings recorded by the learned District Forum, while allowing the consumer complaint, in para-7 of the impugned order, the learned District Forum has recorded that in document R-8, there is no clause-4 of the policy condition. That finding is incorrect because on page-68, there is specific clause-4 of general conditions and as per the said general conditions clause-4, if insured suppressed the material fact, then, the insurance company is entitled to repudiate the claim. Furthermore, the learned District Forum has also recorded the finding in para-7 that in the medical certificate, there is no signature of any person, who had given the history of the insured that he was suffering from Diabetes and in the health checkup summary, it was not mentioned that since how many years, the deceased Ashok S. Shankhla was suffering from Diabetes. But, we do not agree with Kushal A/540/2017 Page 14 of 20 the said finding of the learned District Forum. Because, looking to the Kokilaben Dhirubhai Ambani hospital medical treatment papers of deceased Ashok S. Shankhla (page-39 to 43), it is categorically mentioned that the deceased Ashok S. Shankhla was suffering from Diabetes since more than 20 years and Hypertension since more than 10 years. Furthermore, the learned District Forum has also recorded the finding in para-7 of the impugned order that in document R-4 dated 13.11.2014 of Kokilaben Dhirubhai Ambani hospital, the name of the deceased Ashok S. Shankhla is not mentioned in the column of the name. But, we do not agree with the same finding also. Because, on the top of the right side of the said document R-4 dated 13.11.2014, there is mention of name Mr. Ashok S. Shankhla. So, only because the column of name is left blank, cannot be said that the said document does not pertains to the deceased Ashok S. Shankhla. Furthermore, learned District Forum has also recorded the finding in para-7 of the impugned order that in order to prove the pre-existing disease of insured, the insurance company has not produced any affidavit of the doctor. But, when the said medical treatment papers provided by the wife of the insured alongwith the claim form, there is no reason to raise any doubt or suspicion regarding the facts stated in the said medical treatment papers. Furthermore, as per the decisions of the Hon'ble National Commission in the case of LIC of India & Ors. Vs. Anupama & Ors., reported in II (2012) CPJ 672 and in the case of Smt. A. Sujata Vs. Life Insurance Corporation of India, reported in II (2014) CPJ 53 rendered in Revision Petition No.776 of 2011 dated 04.03.2014 that mere absence of an affidavit of the concerned treating doctor is not an adequate reason to reject the proof and even as per the decision of the Hon'ble National Commission in the Kushal A/540/2017 Page 15 of 20 case of Pushpa Patel Vs. HDFC Standard Life Insurance Co., rendered in First Appeal No.630 of 2018 dated 03.05.2018, when the wrong information was recorded in the certificate or in the discharge summary by the doctor, then, it was the duty of the complainant to approach the concerned hospital to correct the discharge summary or certificate and to clarify that no such information had actually been given by the attendant at the time of admission of the patient in the hospital. So, in this case, the complainant has not approached the hospital for clarification before filing of the consumer complaint or during the pendency of the said complaint. Therefore, as per our considered opinion, the finding recorded by the learned District Forum in para-7 that since the affidavit of the doctor is not submitted, it cannot be believed that the deceased Ashok S. Shankhla was suffering from Diabetes and Hypertension before the proposal form in question are also not correct. So, whatever findings recorded by the learned District Forum in para-7 for not acceptance of the evidence of the insurance company, are not correct and the said findings are erroneous and perverse.
23. That, the learned District Forum has also recorded finding in para-
7 of the impugned order that the insurance company has also not provided the general conditions clause-4 of the insurance policy to the insured and therefore, the insurance company cannot rely on the said condition. But, we do not agree with the said finding of the learned District Forum and for that, we rely upon the decisions of the Hon'ble National Commission cited by the learned advocate of the appellant - insurance company in the case of Bharti AXA General Insurance Company Ltd. Vs. Bhag Chand, reported in IV Kushal A/540/2017 Page 16 of 20 (2016) CPJ 219 and in the case of Kamlesh Gupta Vs. ICICI Lombard General Insurance Co. Ltd. & Ors., reported in I (2017) CPJ 123.
24. That, the learned advocate Mr. A.N. Patel for the respondent -
original complainant has submitted that the insurance company has miserably failed to prove the ground stated in the repudiation letter before the learned District Forum by producing cogent and reliable evidence and he has further submitted that even this Commission presumed for the sake of argument that the insurance company has successfully proved that the deceased Ashok S. Shankhla has suppressed his pre-existing disease namely Diabetes, Hypertension and Obesity in the proposal form, howsoever, the deceased died on account of heart ailment and therefore, suppression of the pre-existing disease had no nexus with the cause of death of the insured Ashok S. Shankhla and in support of the said submission, he has placed reliance upon three decisions as referred in his oral submission hereinabove.
25. That, we have gone through all the three decisions of the Hon'ble National Commission cited by the learned advocate Mr. A.N. Patel for the respondent - original complainant. In all the three decisions, the Hon'ble National Commission observed that if the insurance company failed to prove the nexus of the suppression of pre- existing disease with the cause of death, then, the insurance company is not entitled to repudiate the claim. But, we are relying upon the latest decision of the Hon'ble Apex Court in the case of Reliance Life Insurance Company Vs. Rekhaben Nareshbhai Rathod, reported in AIR 2019 SC 2039 and another decision of the Hon'ble Apex Court in the case of Branch Manager Bajaj Allianz Life Insurance Co. Lts. Vs. Dalbir Kaur, reported in 2020 (4) CPJ 60. In Kushal A/540/2017 Page 17 of 20 both the decisions, the Hon'ble Apex Court has held and observed that the contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question and in the said decision, the Hon'ble Apex Court has also observed what is the meaning of "Proposal Form" and what is the meaning of "Material" in context of insurance policy and has categorically observed that there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance and finding of material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute, the fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. So, as per the said decision of the Hon'ble Apex Court, it was the duty of the insured to state correct facts in the proposal form and if the insured failed to disclose the correct facts or suppressed the information put forth to the insured in the proposal form, then, the insurance company is entitled to repudiate the claim on the ground of non-suppression of material fact. So, in our considered opinion, the above latest two decisions of the Hon'ble Apex Court will prevail over the judgment cited by the learned advocate Mr. A.N. Patel for the respondent - original complainant.
Kushal A/540/2017 Page 18 of 2026. So, in view of the above detailed discussion made hereinabove, we are of the considered view that the insurance company has successfully proved the ground stated in the repudiation letter before the learned District Forum, but the learned District Forum has not rightly considered the documentary evidence produced by the insurance company more particularly, documents namely general conditions clause-4 of the policy in question, proposal form and medical treatment papers of the deceased Ashok S. Shankhla. So, the findings recorded by the learned District Consumer Disputes Redressal Forum, Valsad in para-7 of the impugned order dated 21.06.2017, allowing the Consumer Complaint No.3 of 2016, are erroneous and perverse and contrary to the record and material of the case and therefore, according to our considered opinion, the appeal filed by the insurance company deserves to be allowed in terms of following order. Hence, we passed the following order.
ORDER
1. The Appeal No. 540 of 2017 filed by the Iffco Tokio General Insurance Company Limited is hereby allowed.
2. The impugned order passed by the learned District Consumer Disputes Redressal Forum, Valsad in Consumer Complaint No.3 of 2016 dated 26.01.2017 is hereby quashed and set aside.
3. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No.540 of 2017, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with occurred interest on proper verification to the appellant by Kushal A/540/2017 Page 19 of 20 Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
4. No order as to costs.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Consumer Disputes Redressal Forum, Valsad for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 31st_July, 2023.
[A. C. Raval] [I. D. Patel]
Member Judicial Member
Kushal A/540/2017 Page 20 of 20