National Consumer Disputes Redressal
Additional Director General, Aps (Pli ... vs Jyoni Devi on 16 December, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1233 OF 2013 (Against the order dated 08.01.2013 in F.A.No. 1335/2012 of the State Commission Haryana, Panchkula) 1. Additional Director General ........ Petitioners APS (PLI Cell), PIN 908716 C/O 56 APO 2. Sub Post Master Post Office : Uchana Tehsil Narwana, District Jind, Haryana Vs. Jyoni Devi w/o Shri Mahavir Singh ......... Respondent r/o village Sudhain Kalan PO & Tehsil : Narwana District Jind-126116, Haryana BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Roshan Lal Goel, Advocate For the Respondent : Mr. Naveen Kumar Chauhan, Advocate Dated : 16th December, 2013 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission dated 08.01.2013 whereby the State Commission confirmed the orders of the District Forum which reads thus:
Consequently, the complaint is allowed and the opposite parties are directed to pay a sum of Rs.2,00,000/- to the complainant within 30 days from the date of order of this case, failing which the same shall also carry interest @ 8% p.a. from the date of filing of this complaint i.e. 04.05.2011 till full realization.
2. Briefly put the facts relevant for the disposal of this revision petition are that Manjeet Singh son of complainant took a Postal Life Insurance No. APS850312-L dated 01.09.2008 for insured value of Rs.2,00,000/- from petitioner no.2. Unfortunately, Manjeet Singh expired on 24.06.2009. The insurance claim submitted by the complainant, being nominee of the insured was repudiated by petitioner no.2 on the ground that Manjeet Singh had concealed the fact that at the time of taking insurance, he was suffering from AIDS / HIV. Claiming this to be deficiency in service, the petitioner filed consumer complaint before the District Forum Jind.
3. The petitioner contested the complaint by filing written statement. It was alleged that the insurance claim filed by the petitioner was rightly repudiated for the reason that Manjeet Singh had obtained the insurance policy by concealing the fact that he was suffering from HIV / AIDS,
4. The District Forum on consideration of the pleadings as also the evidence adduced by the parties allowed the complaint and directed the opposite parties to pay a sum of Rs.2,00,000/- to the complainant within 30 days from the date of the order failing which to pay 8% interest p.a. from the date of filing of the complaint till realisation of the amount. The relevant portion of the order of the District Forum detailing reasons for allowing the complaint is reproduced thus:
Here point for consideration is that the son of the complainant was serving in Army where the Army persons are regularly undergo medical examination and check-up. Therefore, it is presumed that the insured (deceased) was not suffering from any fatal disease. The Insurance Company is always free to get the medical examination conducted in respect of the insured. Further, it has been observed that LIC is a beneficiary department but have been found that it always tries to avoid the payment of insurance claim by adopting this way or that way. Hence, deficiency in service is establish on the part of the opposite parties. Consequently, the complaint is allowed and the opposite parties are directed to pay a sum of Rs.2,00,000/- to the complainant within 30 days from the date of order of this case, failing which the same shall also carry interest @ 8% p.a. from the date of filing of the complaint i.e. 04.05.2011 till full realization. Copies of order be supplied to the parties under the rule.
File be consigned to the record room after due compliance.
5. Feeling aggrieved of the order of the District Forum, the petitioner preferred an appeal. The State Commission after hearing the parties and perusing the record concurred with the finding of the District Forum and dismissed the appeal with following observations:
Having taken into consideration the facts and circumstances of the case and contention raised by the learned counsel for the opposite parties, we subscribe to the case of the respondent complainant. The proposal form for obtaining the policy was submitted by the life assured with the OP no.1 on 01.09.2008 showing his medical category AYE/Shape-1. As per Rule 14 (4) of Post Office Insurance Fund, defence personal who are in medical category AYE / Shape-1 will be exempted from medical examination for the purpose. The life assured expired on 24.06.2009. Though OPs have repudiated the claim raising plea that the life assured was suffering from AiDS/HIV at the time of obtaining the insurance policy, however, the appellants-opposite parties have failed to substantiate the allegations and in the absence of any proof mere allegations cannot be considered as proof for denying the rightful claim of the complainant. Thus, the District Forum has rightly allowed the complaint and we feel that there is no ground to interfere in the well reasoned order.
Accordingly, finding no merit in this appeal, it is dismissed.
6. Shri Roshan Lal Goel, Advocate, learned counsel for the petitioner have contended that the orders of the foras below are not sustainable because orders are based on incorrect reading of the evidence. Learned counsel contended that both the foras below have failed to appreciate that at the time of filling the proposal form for insurance policy, the insured was suffering from HIV which fact was deliberately concealed by him. It is argued that since the deceased had obtained the insurance policy by concealing the material fact, the contract of insurance is null and void. Therefore, the petitioners have rightly repudiated the claim filed by the respondent complainant. In support of this contention, learned counsel for the petitioners have drawn our attention to the copy of the medical opinion of Base Hospital, Delhi Cantt dated 14.07.2008 wherein it is mentioned detected to be HIV positive while being screened for fever. Learned counsel for the petitioner has also drawn our attention to the proposal form dated 01.09.2008 submitted by the petitioner for obtaining the insurance policy wherein in column no.11 dealing with Medical History, the petitioner has tickmarked No. Coloum No. 11 reads thus:
Medical History : Have you or any of your family member/relatives, living or dead suffered / suffering from any hereditary or infectious diseases like : Insanity, Epilepsy, Gout, Asthma, Tuberculosis, Cancer, Leprosy, Diabetes, HIV/AIDS, Kidney Diseases, Paralysis, Hypertension, Any other serious disease, any disease of brain.
7. It is argued that from this it is evident that petitioner was aware that he was suffering from HIV positive but he intentionally concealed this fact while obtaining the insurance policy. Thus, learned counsel has urged us not to accept the revision petition and set aside the orders of the fora below.
8. Mr. Naveen Kumar Chauhan, Advocate, learned counsel for the respondent on the contrary has argued in support of the impugned order. He has contended that State Commission has rightly dismissed the appeal observing that petitioners opposite parties have failed to prove the allegation of concealment of material facts by deceased Manjeet Singh at the time of obtaining the insurance policy. He has further contended that no reliance can be placed upon the photocopy of the medical opinion dated 04.07.2008 given by the doctors of the Base Hospital, Delhi Cantt as the aforesaid document has not been properly proved by producing the doctor.
9. The argument of learned counsel for the petitioner appears to be attractive in the first blush. However, in order to establish misrepresentation or concealment of material fact on the part of the insured, the petitioner is required to establish that at the time of signing the proposal form, the insured was actually aware of his medical condition i.e. he was found to be HIV positive.
10. In order to find answer to the above question, we have carefully gone through the photocopy of medical opinion of the Base Hospital, Delhi Cantt dated 14.07.2008. No doubt in this medical opinion, it is recorded that Manjeet Singh was detected to be HIV positive but the fact remains whether or not, he was informed about his above medical condition. The aforesaid medical opinion obviously is confidential document.
There is nothing in this document to indicate that after the medical examination Manjeet Singh was told that he has been detected HIV positive. In absence of any endorsement in this regard in the medical opinion, we find that it difficult to conclude that Manjeet Singh had knowledge on 01.09.2008 that he has been detected HIV positive and he conceded the fact by giving mis-information in the proposal form. This controversy could have been resolved easily by producing the concerned doctors.
Admittedly, the petitioner has not bothered to produce the doctors in evidence to establish that they informed insured that he has been detected HIV positive. Since the petitioner has failed to produce the best evidence, we are inclined to draw an adverse presumption against the petitioners and conclude that the petitioner has failed to establish that the insured was aware that he has been detected HIV positive. In order to bring the present case within the purview of fraud, misrepresentation or concealment of material fact, it was necessary on the part of the petitioner to establish that the insured at the time of obtaining insurance was aware of his medical condition and he had intentionally concealed the same.
Since the petitioner has failed to prove that on 01.09.2008, insured was aware that he has been detected HIV positive, it cannot be said that insured had indulged in fraud, misrepresentation or concealment of material fact while obtaining the insurance policy. Thus, the repudiation of the claim on the part of the petitioner was not justified and it amounts to deficiency in service.
11. In view of the discussion above, we find no jurisdictional error, illegality or material irregularity in the impugned order of the State Commission which may call for interference by this Commission in exercise of revisional jurisdiction.
12. Revision petition is accordingly dismissed. No order as to costs.
.
(AJIT BHARIHOKE, J) ( PRESIDING MEMBER) (SURESH CHANDRA) MEMBER Am/