State Consumer Disputes Redressal Commission
National Insurance Co.Ltd. vs Smt.Anuradha A.Dalvi on 16 April, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI MISC.APPLICATION NO.203 OF 2010 Date of filing: 09/04/2010 FIRST APPEAL NO.923 OF 2009 Date of filing: 07/07/2009 IN CONSUMER COMPLAINT NO.298/2006 Date of order :16/04/2010 DISTRICT CONSUMER FORUM :SOUTH MUMBAI Regional Manager, R.O.I. National Insurance Co.Ltd. Royal Insurance Building Churchgate, Mumbai 400 001 D.O. VII (25077), Samachar marg Mumbai 400 001 Applicant/Appellant/org.O.P. v/s. Smt.Anuradha A.Dalvi W/o.Abhijit A.Dalvi Sindhu Baug, Ghatkopar Mumbai 400 077 .Respondent/org.complainant Quorum : Justice Mr.S.B.Mhase, Honble President Mr.S.R.Khanzode, Honble Judicial Member Mr.Dhanraj Khamatkar, Honble Member
Present:
Mr.M.Rathod-Advocate for the applicant/appellant : ORAL ORDER:
Per Justice Mr.S.B.Mhase, Honble President
1. Heard Mr.M.Rathod-Advocate for the applicant/appellant.
2. Today restoration application has been placed before us. This restoration application has been filed by the applicant/Insurance company because First Appeal no.923/2009 along with Misc.application nos.1087/2009 & 1088/2009 was placed for admission on 15/1/2010 and since no one was present on behalf of the appellant, said appeal was dismissed.
3. It requires to be stated that this restoration application arises in the following circumstances. Respondent/Complainant is a wife of deceased Abhijit Dalvi. Respondent had filed consumer complaint no.298/2006 before the South Mumbai District Consumer Forum and the said complaint was allowed by order dated 25/2/2009. Respondent/complainant had filed the said complaint relying upon the insurance policy covering the claim. Said Mediclaim policy was taken by the respondent on 26/7/2001 and on year to year basis this policy was renewed until 25/7/2005.
He expired on 19/5/2005.
He was suffering from Carcinoma of Pancreas since February 2005 and because of the said problem he expired and, therefore, claim was made for Rs.4,65,348/-. Said claim was rejected by the Insurance company on clause no.4.8 of the policy. Therefore, complaint was lodged.
4. Appellants who were opponents in the said complaint were served duly and in spite of service appellants remained absent. Therefore, on the basis of the material which was placed before the District Consumer Forum the claim was allowed to Rs.4,65,348/- with interest @ 9% p.a. from the date of claim i.e.29/6/2005. By way of mental agony Rs.20,000/- were directed and Rs.10,000/- by way of cost. This order was challenged by filing an appeal no.923/2009. Further, in preferring the said appeal there was/is a delay of 82 days and, therefore, misc. application no.1087/2009 was filed. Misc.application no.1088/2009 was/is filed for the purpose of staying the order passed by the District Consumer Forum.
5. This first appeal along with two misc. applications appeared before the State Commission on 23/11/2009. In fact the date 23/11/2009 was given to the appellant /applicant by the State Commission on 07/07/2009 and in token of the acknowledgement of the said date one Sujata has signed the order sheet on behalf of Ramesh Kelkar, who is an advocate in the said proceeding. Case appeared on board as per schedule on 23/11/2009 and it was called in the morning session. No one was present, it was kept back and when the days time was over it was adjourned to 24/11/2009.
On 24/11/2009 also no one was present on behalf of the appellant but since there was a delay condonation application, we issued notice on delay condonation application r/o.15/1/2010. In view of this order, it was obligatory upon the applicant/appellant to make compliance with the Registrar of State Commission by supplying sets of appeal memo and delay application to serve respondent by registered post acknowledgement due. However, no steps were taken by the appellant and thereafter, matter appeared on 15/1/2010 when no one was present and, therefore, all these proceedings were dismissed for default. In order to restore the said proceedings now misc.application no.203/2010 has been filed. This application has been filed on 09/4/2010.
6. On going through the application what we find that order of dismissal for default was communicated by the State Commission by dispatch outward no.77/2010 on 21/1/2010.
Therefore this intimation must have been received by the applicant/appellant. However, date of receipt of order has not been disclosed. It appears that certified copy which has been produced on record is of 15/3/2010 and from that date application is claimed to be within 30 days. However, time will start to run as against appellant the day on which intimation which was dispatched on 21/1/2010 has been received by the appellant and that information has been suppressed while drafting the application. What we find that the application as per regulation no.14(iv) is required to be filed within a period of 30 days and thereby knowledge that is receipt of intimation which has been dispatched by the State Commission should have been placed on record. We reasonably thought within period of 7 days from 21/1/2010 intimation must have been received by the applicant/appellant since it is a local delivery. We find this application for restoration is not within time. There is no application as per regulation no.14(iv) for condonation of delay and, therefore, application of restoration itself is time barred.
7. Apart from that it has been brought to our notice that reason for restoration is that that Advocate Ramesh Kelkar was on record representing appellant/ applicant and that he was ill and he expired on 19/1/2001 therefore, on 15/1/2010 he could not attend the case and it was dismissed for default. It is therefore, we scrutinized the record of original appeal and we find that there is vakalatnama on record but the said vakalatnama has not been signed by Advocate Ramesh Kelkar and he has never appeared before the State Commission in the present matter. Therefore, he cannot be said to be advocate for appellant. It is to be noted that even on day of presentation of appeal he had not appeared because order sheet has been signed by one Sujata for Ramesh Kelkar. Who is Sujata is not known to us. At least from the record it does not show that whether she is clerk of Ramesh Kelkar and/or any officer of the Insurance company. We found that there is no explanation given in this respect in this restoration application by the opponent. In short, what we find that ground that Ramesh Kelkar was ill and, thereafter, he has expired is not sustainable in the facts and circumstances which are available from the record. Record is otherwise than the statement made in the restoration application. Only attempt is being made to see that it is an Insurance company, a Public Limited company and, therefore, restoration application may be allowed. Such approach is not permissible under the law. Officers of the Insurance company, we expect to be diligent in prosecuting the matters.
8. What is interesting to note that consistently in this present matter insurance company is suffering under the lapses. They themselves, even though when served in the original complaint by the District Consumer Forum preferred to remain absent and only after the order has been passed by the District Consumer Forum, they have approached to the State Commission. Therefore, total conduct of the officers of the Insurance company and the Insurance company is of such nature that they desire to harass the complainant by putting him in circuitous litigation i.e. to remain absent, get the case decided ex-parte and thereafter to claim remand, etc.
9. We have no doubt considered the above technical aspects of the matter but since it is a case of Rs.4 lakhs and it is a Public Limited company, we also wanted to know whether there is merits in case in favour of the appellant/Insurance company and, therefore, we called upon Ld.counsel to point out merits of the matter and/or defects in the order of the District Consumer Forum. He submitted that the claim of the complainant was repudiated on the basis of report of Dr.Desai who was appointed as expert. His report states
1.Pancreatitis may be related to alcohol 2. History of Pancreatitis is 2003 and 3. Possibility of cirrhosis of liver due to alcohol cannot be excluded and, therefore, made reference to 4.8 clause. Clause 4.8 of the insurance policy is as follows:-
4.8 :- Convalescence general debility Run Down condition or rest cure, congenital external disease or defects of anomalies, sterility, infertility/sub fertility or assisted conception procedure, venereal disease, intentional self-injury, suicide, all psychiatric and psychosomatic disorders/diseases, accidents due to misuse or abuse of drugs/alcohol or use of intoxicating substances.
10. What is important to be noted that last clause which makes a reference to alcohol is as follows:-
Accidents due to misuse or abuse of drugs/alcohol or use of intoxicating substances.
11. From the said clause i.e. accidents due to misuse or abuse of drugs/alcohol or use of intoxicating substances, the words due to misuse or abuse of drugs/alcohol or use of intoxicating substances are all suffixes and they are qualifying words to the word accident and, therefore, this clause in the facts and circumstances of the case does not apply. Apart from that even if we look to the report of Dr.Desai it is a report of conjunctures, because he has stated that Pancreatitis may be related to alcohol, history of Pancreatitis is 2003, the possibility of cirrhosis of liver due to alcohol cannot be excluded.
Therefore, he has not come to the conclusion that deceased suffered from Pancreatitis or cirrhosis of liver as a result of consumption of alcohol. There is nothing on record at least of the investigating person to show that the deceased was a habitual person consuming liquor. Nothing has been produced on record that as a result of consumption of liquor, cirrhosis was caused or carcinoma of pancreas was caused. Therefore, report of Desai is absolutely conjuncture and on such a report claim cannot be denied. It is to be noted that deceased was insured with them since 2001 and on year to year policy was renewed. Deceased has made out a case before the District Consumer Forum that he was not aware of the carcinoma of the pancreas and there is nothing on record to demonstrate that deceased has knowledge of same and he suppressed said fact from the Insurance company. District Consumer Forum allowed the claim in absence of reply version because insurance company preferred to remain absent for the best reasons known to them. In the circumstances, Rule of non traverse will apply. In absence of reply version the statement made by the complainant would have to be accepted and, therefore, keeping in view this legal aspect what we find that the District Consumer Forum has rightly accepted the case made out by the complainant/respondent and allowed the claim on merit also. Thus, we considered case of the appellant on merit also and we find that there is no case for admission of the matter. Therefore, restoration application stands rejected. With all above grounds coupled with facts, main appeal does not deserves to be admitted and, therefore, total proceedings which are filed before the State Commission are disposed of in accordance with the above order.
Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R.Khanzode) (S.B.Mhase) Member Judicial Member President Ms.