State Consumer Disputes Redressal Commission
National Insurance Company Limited, ... vs 1. Kranti P. Jain Son Of Late Shri J.P. ... on 22 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.106 of 2009 Date of Institution: 23.01.2009 Date of Decision: 22.10.2012 National Insurance Company Limited, SCO No.337-340, Sector 35-B, Chandigarh, through its authorised signatory/attorney. Appellant (OP-1) Versus 1. Kranti P. Jain son of late Shri J.P. Jain, C/o 46, Industrial Estate, Sector 6, Faridabad. Respondent (Complainant) 2. Mercury International Assistance & Claims Ltd., P.O. Box 673, Hove, Sussex BN 35 JL England. Respondent (OP-2) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri P.S. Bedi, Advocate for appellant. Shri Rajeshwar Thakur, Advocate for respondent No.1. Respondent No.2 exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 24.06.2008 passed by District Consumer Forum, Faridabad whereby complaint bearing No.283/2004 filed by complainant (respondent No.1 herein) was accepted and following direction was issued to the appellant-opposite party No.1:-
.the complaint of the complainant is allowed with costs and respondent No.1 is directed:
i) To pay Rs.20 lakhs alongwith interest @ 12% p.a. from 16.3.2000 the date of depositing the amount till its realization.
ii) To pay Rs.50,000/-
on account of mental tension, harassment etc.
iii) To pay Rs.3300/- as litigation charges.
8. Compliance of this order be made within 45 days after the receipt of the copy of the present order.
The brief facts of the present case as emerged from the record are that the complainant (respondent No.1) had taken a Videsh Yatra Mitra Policy (Overseas Medical Policy) bearing No.48602 from the opposite party No.1 for the period 03.02.2000 to 02.02.2001. The complainant visited abroad and during visit felt chest pain. For obtaining treatment, the complainant was admitted in Cleveland clinic Foundation, U.S.A. w.e.f. 07.02.2000 to 15.2.2000 and was operated for coronary artery bypass. According to the complainant he spent Rs.21,28,009.50. The complainant submitted claim with the appellant-opposite party No.1 through opposite party No.2 but the claim of the complainant was not settled by the appellant-opposite party No.1 and forced by these circumstances the complainant filed complaint before the District Consumer Forum seeking direction to the opposite parties to pay Rs.20 lacs towards the expenses incurred by the complainant on his treatment besides damages and compensation on account of mental agony and harassment as well as legal expenses.
Upon notice, the opposite party No.1 (appellant herein) appeared and contested the complaint by filing written statement wherein it took the plea that the complainant had not provided any documents to the appellant. It was further stated that the complainant had filed false claim in collusion with the opposite party No.2 and after obtaining the wrong report of Dr. B.S. Singla, who was complainants family doctor since years, had submitted a wrong proposal form by concealing the pre-existing disease with a bad and dishonest intention by twisting and concealing the true facts. The complainant had concealed the true facts of his pre-existing disease in the proposal form and lateron additing the factum of pre-existing disease partly by forging the document, did not fill up the proposal form completely and filled up in a vague manner, concealed the true facts and obtained a wrong report from his family doctor. Denying any kind of deficiency in service on its part, the opposite party No.1 prayed for dismissal of the complaint.
Both the parties adduced evidence in support of their respective claims. On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite party No.1 as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite party No.1 has come up in appeal.
Arguments heard. File perused.
There is delay of 183 days in filing of the instant appeal the condonation of which has been sought by the appellant by moving an application under Section 5 of the Limitation Act. The application is supported with an affidavit of Ravinder Kaur, A.O. National Insurance Company Limited, SCO 337-340, Sector 35-B, Chandigarh.
While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 183 days in filing of the present appeal is condoned.
The impugned order has been assailed by the learned counsel for the appellant on the following grounds:-
i) District Consumer Forum has no pecuniary jurisdiction to entertain the complaint as the complainant had prayed for an amount of Rs.20 lacs in addition to granting of compensation for mental agony, harassment etc whereas the pecuniary jurisdiction of the District Forum is limited upto Rs.20 lacs only.
ii) District Consumer Forum has awarded compensation to the complainant beyond its pecuniary jurisdiction i.e. Rs.20 lacs alongwith interest @ 12% p.a. from 16.3.2000 in addition to granting of Rs.50,000/- on account of mental tension, harassment etc and Rs.3300/- as litigation charges.
iii) District Forum wrongly awarded interest @ 12% p.a. from 16.3.2000 whereas it was not a case of granting interest nor the interest was sought by the complainant.
iv) The complainant was suffering from pre-existing disease since 1984 and had underwent bypass heart surgery in 1984 and 1991 but in the proposal form he did not disclose this fact.
v) In para No.6 of the proposal form, the word by-pass heart surgery in 1984 and 1991 was manipulated and added later on in the proposal form after obtaining the policy as the writing of the whole document is different from the writing of the said words.
vi) The Insurance Policy was obtained on 01.02.2000 which was effected from 03.02.2000 to 02.02.2001. The complainant left for U.S.A. on 3.2.2000 and was operated upon for Coronary Artery Bypass on 7.2.2000 i.e. after four days from his departure well as from the date of commencement of Insurance Policy which clearly shows the malafide intention of the complainant for obtaining the insurance policy by fraud and misrepresentation.
We find force in the contention raised on behalf of the appellant. The cogent and convincing evidence produced by the appellant-opposite party No.1 clearly reflect the act and conduct of the complainant. The policy was taken on 01.02.2000, the complainant left India for U.S.A. on 03.02.2000 and just after four days of his departure, he was operated for coronary artery bypass on 7.2.2000. The complainant allegedly spent an amount of USD 42391 on the treatment which approximately came to Rs.19,07,595/- as disclosed by the complainant in the complaint and thereafter lodged claim for Rs.20 lacs with the appellant-opposite party No.1 which was not settled as the complainant had undergone bypass surgery earlier also. The cuttings in the proposal form show that the complainant played fraud with the appellant. The act and conduct of the complainant shows that he had obtained the policy by fraud and misrepresentation with the opposite party No.2. Thus, the complainant is not entitled for any insurable benefit.
So far as the question of pecuniary jurisdiction of the District Forum, admittedly the complainant sought compensation beyond Rs.20 lacs and therefore the complaint before the District Forum was not entertainable. On this ground as well the impugned order cannot be allowed to sustain. District Consumer Forum has failed to appreciate the above stated facts of the case, hence, the impugned order is not sustainable in the eyes of law.
For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing appeal and Rs.19,20,405/- deposited on 25.02.2009 as per order of State Commission be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 22.10.2012 President B.M. Bedi Judicial Member