H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 132 of 2009

Decided on 25.5.2009.



Smt. Sushma Sharma,

wife of Sh. R.K.Sharma,

Resident of Bhumker, Tehsil and

District Shimla, H.P.

....Appellant.

Versus



Himachal Pradesh State Co-operative

Agricultural Rural Development Bank

Limited, Shimla.

….Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. Dheeraj Bansal, Advocate vice

Mr. Tek Chand Sharma, Advocate.



For the Respondent. Mr. Mohinder Verma, Advocate.

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. This appeal is directed against the order dated 4.3.2009, passed by District Forum, Shimla whereby application under order 9 Rule 4 read with section 151 CPC for restoration of the complaint that was dismissed for default of appearance on behalf of appellant on 16.1.2008 has been rejected. After taking note of the later decision of the Hon’ble Supreme Court, this Commission in identical circumstances has allowed Appeal No. 5/2009 on 20.3.2009, in the case of Krishan Dutt V/s Secretary (Health) to the Government of H.P., Secretariat, Shimla and another.



2. In addition to this, from the facts detailed in the application for restoration of the appeal, we are satisfied that when the case was called on 16.1.2008, absence of the appellant, as well as his learned counsel was neither wilful nor intentional. To the contrary absence was due to the reasons beyond the control of the counsel. Accordinlgy, in the light of the decision of this Commission dated 20.3.2009, (supra) as well as of the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. Versus R. Srinivasan (2003) 3 Supreme Court Cases 242, this appeal deserves to be allowed. Ordered accordingly



3. In view of the aforesaid discussion this appeal is allowed and as a result of it M.A.No. 34/2008, filed by the appellant for recall of the order dated 16.1.2009, is allowed and resultantly the impugned order is set aside and complaint is ordered to be restored to its original No. and date with a further direction to the District Forum below now to proceed in the matter in accordance with law after hearing the parties. Since parties are duly represented and are present before us, they are directed to appear before District Forum below on 8.6.2009.



4. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.



5. Office will ensure that file is remitted back well before the date fixed.



(Justice Arun Kumar Goel) Retd.

President





(Saroj Sharma)

Member





(Chander Shekher Sharma)

Member

Suneera

25.5.2009






















































































































H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 11 of 2008

Reserved on 12.5.2009.

Decided on 26.5.2009.



1. Manager Claims Life Insurance

Corporation of India code No. 16,

Raura Sector Bilaspur,

District Bilaspur, HP.



2. LIC of India through its

Divisional Manager, Shimla Divisional

Kasumpti, Shimla-9.

.....Appellants.

Versus



1. Mrs. Amara Vati Devi

W/o Late Sh. Bal Mukund.



2. Sh. Pankaj S/o Late Sh. Bal Mukund.

Both R/o Kothi, P.O Behna Jattan,

Tehsil Sadar, District Bilaspur, H.P. ….Respondents.

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Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. Navlesh Verma, Advocate



For the Respondents. Mr. Kulbhushan Khajuria, Advocate

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ORDER



Per Mr. Chander Shekher Sharma, Member.



1. This appeal is directed against the order passed by Distict Forum, Bilaspur, camp at Ghumarwin, in Consumer Complaint No. 83/2006, decided on 13.11.2007. In the operative part of the judgement the Distict Forum below had directed the respondents to pay assured sum of Rs. 50,000/- alongwith vested bonus to Master Pankaj respondent No.2 with interest @ 9% per annum from the date of complaint till realistion and besides this cost Rs. 1000/- had also been awarded.



2. The facts of the case that emerges from the complaint are that respondents Smt. Amara Vati Devi, W/o late Sh. Bal Mukund and

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Whether reporters of Local Papers may be allowed to see the orders ?



….2….



Pankaj, Son had filed complaint u/s 12 of the Consumer Protection Act, 1986 against the respondents wherein it had been alleged that Bal Mukund had got himself insured vide policy No. 151356437 by the appellants on 24.8.2003 and insured Bal Mukund had died on 3.10. 2003 due to heart failure at Tapri, District Kinnaur and it had been also alleged in the complaint that death claim under the policy was submitted to the appellant for assured sum of Rs. 50,000/-. The appellants vide letter dated 30.3.2005 had refused to make the payment on the pretext that the insured had undergone by pass surgery and this fact was concealed at the time of insurance contract. Since the payment was not made to the respondents on account of policy despite request as such this act on the part of the appellants amounts to deficiency in service, hence present complaint had been filed with a prayer for direction to the respondents to made payment of Rs. 50,000/- with interest @ 9% per annum from the date of death of Mal Mukund and Rs. 10,000/- had been claimed for mental and physical harassment besides Rs. 1000/- as litigation cost.



3. The respondent have contested the claim submitted by the appellants and the main plea which was taken in the reply was that there is a breach of terms and conditions of the policy and policy holder had suppressed the true and material facts and as such the present case is hit by Section 45 of the Insurance Act, 1938. It had further been averred in the reply that the life assured had obtained the said policy by suppressing material facts with fradulent intention, since policy holder did not disclose about the medical leave availed by him and the fact about undergoing by pass surgery in Batra Hospital.



4. The rejoinder to the reply was also filed wherein the respondent have completely denied the averments and re-asserted stand taken in the complaint.



5. The brief resume of the evidence led by the appellants in nutsell is that the appellants in present case had filed affidavit of













….3….



Dr. Anil alongwith Annexure R-3 which are prescription slips/leave applications/joining report, insurance policy Annexure R-1, proposal declaration from Annexure R-2, Annexure R-4 letter dated 30.5.2005 whereby policy claim had been repudiated. Other documents viz. policy claim and record pertaining to leave of Bal Mukund certified by auhtorised signatory J.P. Industrial and Medical Services Pvt. Ltd. Annexure R-5 to R-9.



6. We have heard learned counsel for the appellant Sh. Navlesh Verma and Sh. Kulbhushan Khajuria, learned counsel for the respondent.



7. The respondents in support of case had filed rejoinder alongwith affidavit dated 13.3.2007 and also placed reliance an Ex. C-1, death certificate, C-2 letter communicating repudiation of the policy and Annexure C-3 letter dated 14.3.2007 addressed to respondent No.1 and Ex. C-4 letter addressed to the counsel for respondent No.1. Ex. C-5 letter dated 20.4.2006 addressed to Smt. Amara Vati, respondent No.1



8. Learned counsel for the appellant has mainly based his arguments on the point that the insurer in the present case had concealed the material facts relating to his illness and also availing of leave on medical grounds from the employer on different dates and also taking of treatment in Batra Hospital and by pass sugery operation.



9. He had also laid emphasis on the various questions relating to suffering from disease and taking of leave etc. as referred in Annexure R-3 which were completely denied by the policy holder.



10. Sh. Khajuria had supported the judgement of learned Forum and had argued that there is no documentary evidence placed on record by the appellants to prove that the insured Bal Mukund had







….4…..

taken any tretment in Batra Hospital where he had undergone a by pass surgery. And as such he has argued that present case is covered under section 45 of the Insurance Act, 1938 and policy had been rightly repudiated by the appellants and also argued that in view of the law laid down by the apex court in number of cases that where the material facts relating to illness etc. had been suppressed by the insured then as per Section 45, the insurance authorities have got every right to repudiate the claim on suppression of material facts.



11. After hearing the arguments of both the parties as well as going through the record of case minutely we are convenienced that there is no legal infermity in the order of District Forum below since it had rightly directed for payment of sum insured + Bonus to respondent No.2 being a nominee with interest @ 9% per annum from the date of complaint and also awarding cost in the case.



12. In the present case after minute examination of the record of the case it cannot be said that there is no any material suppression of facts relating to disease etc. on the part of insured and even denial of questions asked to the insured as referred in Annexure R-4, are also not having any material significance which points out towards material suppression of facts on the part of the insured. There is also no cogent, conviencing and relaible evidence placed on record by the appellants which points out that insured late Sh. Bal Mukund had remained admitted and taken treatment in Batra Hospital for heart ailment and he had also undergone by pass surgery in the said hospital, as it was essential in view of the fact that respondent No.1 in her affidavit dated 13.3.2007 which is at page-21 of the complaint file had stated that husband of the deponent had never undergone by-pass/heart surgery in any hospital he might have availed medical leave for the construction of house because he was not allowed to proceed on casual leave, hence it was the bounded duty of the appellants to produce documentary evidence to rebut of aforesaid contention of respondent to make out a case of suppression of material facts and there is also no iota of evidence in this regard which had come on record of this case and as such this case is not covered u/s 45 of the Insurance Act, 1938, hence the death claim of the life assured Bal Mukund which was preferred by the respondents had been illegally rejected by the appellants.



13. Moreover death certificate Annexure C-1 clearly reveals that Bal Mukund had died due to heart failure. The prescription slips/affidavit of Dr. Anil which had been filed by the respondents in order to prove material concealment of facts relating the deceased having suffered high blood pressure does not hold any weight. Even the record which had been produced by the appellants that also does not make out the case of suppression of material facts/fraud by the policy holder and this fact had also not been proved that deceased was suffering from heart disease.



14. Legal Position in the matters covered u/s 45 of the Insurance Act, 1938 had been dealt in detail by the apex court in case titled as P.C.Chacko And Another V/s Chairman Life Insurance Corporation of India and Others. (2008) 1 Supreme Court Cases 321. Wherein it was held that policy should not be obtained with fraudulant acts by the insured and proposal can be repudiated if fraudulant act is discovered and suppression material facts were made fraudulently. Three conditions were held essential for application of section 45 of the Insurance Act, 1938 in this case. See para-14, page-326.

“ (a) the statement must be on a material matter or must Suppress facts which it was material to disclose ;



(b) the suppression must be fraudulently made by the policy-holder ; and



(c ) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.”



15. Other cases decided by various State Commission in the matter Life Insurance Corporation of India & Anr. V/s Shanti Rajbhar 1 (2009) CPJ 479 SCDRC, West Bengal. Wherein it was held that suppression of material facts-Non disclosure of material information not proved-Leave taken by the employee on medical ground, not proof of actual illness-Repudiation unjustified.



16. In the present case deceased Bal Mukund died due to heart failure as such in this case the heart failure has no nexus with the fact that deceased was suffering from hypertension for which he had taken treatment as per affidavit of or opinion of medical expert heart failure can be caused by many other reasons such as heart disease/blood pressure can cause heamarrhage etc. This Commission had also taken a view in the case of LIC, Bilaspur & Anr. Versus Sarojan Devi 1 (2009) CPJ 293 that repudiation of policy is unjustified when cause of death has no connection with the disease also see Shantaben Ratilal Patel V/s LIC of India 1996 (2) CPJ 92 Gujarat.



17. Moreover high blood pressure is not a srious disease and it is a part of ordinary stress and strain III (2008) CPJ 120 titled as Life Insurance Corporation of India and others Versus Sarbjit Kaur SCDRC, Chandigarh.



18. In case Life Insurance Corporation of India & Anr. Versus Kastura Ram, 1 (2009) CPJ 404. Rajasthan State Consumer Disputes Redressal Commission had laid down the following parameters for calcellation of the insurance policy in a case covered u/s 45 of Insurance Act, 1938.



“a) That policy holder concealed or suppressed material facts.

b) That such suppression or concealment was fraudulently made by the policy holder.

c) That policy holder was aware at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. In other words, policy holder knowingly and deliberately gave incorrect information in the personal statement.”



19. Hence, as per law laid down by the apex court, Section 45 is applicable only in cases of deliberate concealment of facts/fraud made by the policy holder, but in view of the oral and documentary evidence which had come on record, this case does not come within the ambit of suppression of material facts/fraud made by the policy holder where upon the policy can be repudiated by the appellants and as such repudiation of policy is not legally warranted in the present case. Ld. District Forum below had rightly placed reliance on a decision of Hon’ble High Court of Rajasthan in case titled as Life Insurance Corporation of India versus District Permanent Lok Adalat and another, “AIR 2004 Rajasthan 327”.


20. No other point was urged.


21. In view of the aforesaid discussion and legal position explained above and keeping in view the facts and circumstances of the case there is no cogent, conveniencing and reliable evidence on record to prove that there was material concealment of facts/fraud on the part of the policy holder and as such there are no reasons to interfere with the order of District Forum below and same is upheld by dismissing the present appeal. There is no order as to the costs.





22. Learned counsel for the parties be supplied copy of this order free of cost, by the Court Secretary as per Rules.







(Saroj Sharma)

Member





(Chander Shekher Sharma)

Member

*SS*
26.5.2009.













































H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

F.A. No. 353 of 2008

Decided on 5.5.2009.



Horizon Computers Near Gyuto Monastery,

Sidhbari, Tehsil Dharamshala,

Distict Kangra (H.P) through its Proprietor

Sh. Pankaj Sharma

Son of Sh. Subhash Chand Sharma,

Resident of YOL, Tehsil Dharamshala,

District Kangra (H.P).

.....Appellant.

Versus



Balwant Dogra son of Sh. Kehar Singh,

Resident of Village Upper Dari,

P.O. Dari, Tehsil Dharamshala,

Distict Kangra (H.P).

….Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharna, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. Surinder Saklani, Advocate.



For the Respondent. Mr. Sanjay @@@@hi, Advocate.

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. Mr. Surinder Saklani, learned counsel for the appellant challenged the order of District Forum, Kangra at Dharamshala dated 1.10.2008 in Consumer Complaint No. 377/2006. While allowing the complaint, District Forum below ordered as under :-



“6. In view of our findings on points No. 1 and 2 above, the complaint is partly allowed and we order the oppoiste party to replace the defctive computer with new one of the same make and model, within 30 days after the receipt of copy of this order, failing which the opposite party will return the consideration amount to the complainant alongwith interest @ 9% per annum from the date of complaint, till its realisation. The oppoiste party is also directed to pay compensation to the complainant to the tune of Rs. 5,000/- coupled with litigation costs to the tune of Rs. 2000/-.”



2. Per Mr. Saklani, Annexure C-2 filed with the complaint is not a genuine receipt and also its original was not produced. Alternatively he submitted that instead of ordering replacement of computer in question failing which to return with consideration, his client at best could be directed to repair the computer. Lastly it was submitted by Mr. Saklani, that compensation and cost should not have been allowed in any situation, thus he prayed for allowing this appeal by setting aside the impugned order or in the alternative to reduce the compensation and cost to a nominal sum by modifying the impugned order.



3. All these pleas were seriously contested by Mr. @@@@hi, learned counsel on behalf of the respondent. Per him in the circumstances of this case, impugned order suffers from no infirmity which may justify either it being set aside or modified. Rather according to him compensation needs to be enhanced, besides levying punitive cost.



4. After hearing learned counsel for the parties, as well as having examined the record of the complaint file, we are of the view that subject to partial modification of compensation and cost, rest of the order passed by District Forum below needs to be upheld as no exception can be taken to it.



5. Challenge to Annexure C-2 on account of its being either not genuine or its original having not been produced is being noted simply to be rejected. Reason being that strict rules of evidence are not applicable to proceedings before the Foras under Consumer Protection Act, 1986. Annexure C-2 is also challenged on the basis that it is a receipt. Its perusal shows that no doubt it is nomenclatured as a receipt, but its contents clearly suggest that it pertains to the computer in question relating to bill No. 320, dated 4.5.2006, issued by the appellant. Copy of this bill is Annexure C-1 and was admitted at the time of hearing by learned counsel for the appellant. It appears that on its printed receipt for money, computer having been received for repair or replacement case, is signed by the authorised signatory of the appellant. Thus non-production of its original does not improve the case of the appellant.



6. Faced with this situation, it was submitted by Mr. Saklani that authorised signatories of Annexure C-1 the bill, and the receipt Annexure C-2 are different to the naked eye. As such according to him no benefit can be derived from the receipt of Annexure C-2. Suffice it to say in this behalf is that it is not the case of the appellant, nor it was argued that the authorised signatory was one and the same person both when Annexure C-1 the bill, and the receipt of computer for repairs or replacement case, Annexure C-2 was issued. This is an additional ground to reject the submission urged by Mr. Saklani based on Annexure C-2.



7. So far plea of the appellant that instead of having ordered for replacement of the computer in question and on failure to pay the consideration with interest is concerned, its repairs should have ordered, is likewise without merit. Computer having developed defects within very short span of its purchase is established on the basis of the evidence on record. In such a situation this plea urged on behalf of the appellant is without merit, hence rejected. As such, we are of the view that direction either to replace the computer with a new one or to pay the consideration is in accordance with law and deserves to be upheld. Ordered accordingly.



8. On an overall examination of the whole case it is felt that compensation and cost allowed in the total sum of Rs. 7000/-, (5000+2000) respectively need to be reduced to a consolidated sum of Rs. 5000/-. Ordered accordingly.



9. No other point was urged.



10. In view of the aforesaid discussion while partly allowing this appeal it is ordered that compensation and cost will now be payable in

















….4….



the sum of Rs. 5000/- instead of Rs. 7000/- (Rs. 5000+2000) respectively, as ordered by District Forum below. Rest of the order passed in Consumer Complaint No. 377/2006 by District Forum below is upheld leaving the parties to bear their own cost.



11. Since appeal was filed and execution of the impugned order was stayed, as such period of one month will now start from today i.e. 5.5.2009 to comply with the above extracted directions as contained in the order of District Forum below.



12. All interim orders passed from time to time shall stand vacated forthwith.



13. Learned counsel for the parties have undertaken to collect the copy of this order free of cost as per Rules.



(Justice Arun Kumar Goel) Retd.

President





(Saroj Sharma) Member





(Chander Shekher Sharma)

Member