This is an appeal filed under Section 15 of the CP Act 1986 by the appellant / Opposite Party against the order dated 03.08.2010 passed by the DF, Chickmagalore in Complaint No. 203/2010 whereby his complaint filed by the respondent came to be allowed directing this appellant/Opposite Party to pay assured amount of Rs. 1,00,000/- along with compensation of Rs.5,000/- and litigation expenses of Rs. 2,000/- within one month from the date of receipt of the order failing which 9% interest shall be paid on the said amount till its realization. Assailing the same it has come up with this appeal on various grounds.
2. The appellant also filed an application under Section 5 of the Limitation Act to condone the delay of 10 days caused in preferring this appeal supported by an affidavit of its officer by name Sreedhar, working as a Customer Service Associate of ICICI Prudential Life Insurance Company Ltd., explaining the reasons for the delay in preferring this appeal.
3. The respondent appeared through counsel on 18.08.2011 resisted the appeal contending that the DF is right in allowing the complaint. Since there is no perverse or incorrect findings recorded by the DF, hence prays for dismissal of the appeal.
4. In this appeal on 17.01.2012 we have heard the learned counsel for the appellant in part and adjourned at the request of the counsel for the appellant to 16.02.2012. In the meanwhile we have secured the LCR on 16.02.2012. None represents on behalf of both the parties to put-forth their defence. Hence the further arguments was taken as closed and perused the records.
5. The point for determination in this appeal as to whether the:
a) Appellant has shown sufficient and reasonable grounds to condone the delay of 10 days?
b) Whether the DF is justified in allowing the complaint filed by the respondent / complainant?
c) If so what order?
6. Point a):- The appellants officer has filed the affidavit explaining the reasons for the delay in preferring the appeal about ten days. The appellant has narrated some administrative difficulties in preferring the appeal in time. We have gone through the reasons assigned and satisfied and therefore the delay in filing the appeal is condoned by allowing I.A.No.I.
7. Point b):- It is an admitted fact that, the respondent herein Zarina Taj who is complainant before the DF filed a complaint on the allegations of deficiency of service. According to her, her husband obtained insurance policy in the month of December-2006 for Rs. 1 lakhs. After verifying the medical checkup report. On 13.12.2008 the husband of the complainant Fayaz Ahmed died, therefore she submitted a claim application by virtue of nominee of the policy but, the Opposite Party repudiated the claim by their letter dated 03.11.2009 on the ground that the deceased had pre-existing diseases on a false grounds in order to avoid the payment of the sum assured to the complainant. Therefore, she filed a complaint.
8. In spite of service of notice, the appellant/Opposite Party neither appeared in person or through counsel. Therefore, appellant/Opposite Party was placed exparte and the respondent/complainant who filed her affidavit evidence and one document marked at Ex.P-1. After considering the evidence, complaint came to be allowed.
9. It was argued by the learned counsel for the appellant that the policy was obtained by the deceased fraudulently, dishonestly and by misrepresentation. Since the order passed by the DF is an exparte one and therefore appellant should be heard. The issuance of the insurance policy in favour of the deceased Fayaz Ahmed who is none other than the husband of the respondent/complainant is not in dispute. The policy was issued in the month of December-2006 but, he died on 13.12.2008 after two years. For the reasons assigned by the appellant for its absence for appearing before the DF even after service of notice and the summons received by the appellant branch at Chickmagalore which was forwarded to the appellant at Mumbai Head Office and the legal department but, in transit the said summons was misplaced and as a result of which the appellant could not appear before the DF and subsequently DF was placed exparte. Non appearance of the appellant is neither untentional nor deliberate. It is argued that the proposal form dated 19.12.2006 received from Fayaz Ahmed seeking insurance under the plan Smart Kid ULRP with sum assured Rs. 1 lakhs and chosen yearly frequency.
10.Â Of course, in the appeal a specific contention was taken by the appellant that the policy was obtained by suppressing pre-existing disease, misrepresentation and played a fraud. According to the respondent, her husband after undergoing thorough medical checkups and after going through medical report and the proposal form, the policy came to be issued in favour of her husband. Therefore, the question of misrepresentation, suppression of pre-existing disease does not arise. The death of insured is natural one. The policy came to be issued on 29.12.2006. The appellant has produced letter at Ex.P-1 that life assured was a known case of diabetes mellitus and hypertension since 2000 and was on regular treatment for the same. The life assured underwent tests for assessment of diabetes mellitus in November-2006. The burden of proof to prove pre-existing disease lies on the appellant/Opposite Party but along with this appeal memo, the appellant has produced only Xerox copy of the proposal form, identity card of the appellant but not produced the Xerox copy of the medical records pertaining the deceased to show that the policy was obtained by suppressing pre-existing disease right from 2000 onwards.
11. Merely because the notice was rightly ordered, issued and served on the Manager of the ICICI Prudential Life Insurance Company Ltd., Chickmagalore. If there is any delay on the part of the Manager of the of the ICICI Prudential Life Insurance Company Ltd., in sending the same to the appellant, which was misplaced in transit is not a ground to repudiate the claim. It is the bounden duty of the Manager of the ICICI Prudential Life Insurance Company Ltd., Chickmagalore of the appellant to inform at least telephonically about sending of the notice and served upon it received from the DF. The Manager of the ICICI Prudential Life Insurance Company Ltd., Chickmagalore ought to have been appeared through himself or through its counsel. Since the appellant has not shown any sufficient grounds for not appearing before the DF even after receipt of the service of notice. The medical certificate issued by M.V Center for Diabetes, KMC produced at ink page No.45 shows that, the duration of treatment taken by late Fayaz Ahmed was for two weeks. No attempt has been made to produce the records maintained by the M.V Center for Diabetes if really the deceased was undergoing treatment since 2000 it ought to have been produced the same. Considering the facts and circumstances of the case, the so called medical records stated to have been issued by M.V. Center and the medicines prescribed to the patient on 10.11.2006 and subsequently medical tests in the year 2006. The reasons assigned by the appellant for misplacement of the notice or summons sent by the Manager of the ICICI Life Insurance Company Ltd., Chickmagalore appears to be a reasonable one. Therefore, in our considered opinion an opportunity is to be given to prove that the policy has been obtained for suppression of pre-existing disease. Therefore, the present appeal is liable to be allowed. Accordingly, we pass the following:
Appeal is allowed. The matter is remanded back to the DF with a direction to secure the presence of both the parties and by giving reasonable opportunities to file version and affidavit evidence and other documents and after hearing the arguments dispose of the matter in accordance with law as expeditiously. No order as to costs.
The amount deposited by the appellant in this appeal shall be refunded to the appellant if a memo is filed to that effect.