AI Structured Summary
Not yet generated for this judgment
Judgment
IN this revision petition, there is challenge to order dated 20.7.2006, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short ''State Commission '').
BRIEF facts are that respondent/complainant filed a complaint before District Forum, Yamuna Nagar (for short as ''District Forum '') with averments that his father Bhagwan Singh was insured with the petitioners, vide policy dated 5.4.2000 for a sum of Rs.1,00,000/-. Maturity date of the said policy was 5.1.2018 and respondent being real son of life assured, was made nominee. At the time of taking the said insurance policy, father of respondent was having a very good physical health and was fully fit and was not suffering from any disease and after fully satisfying itself and its doctors, petitioners insured the father of the respondent with them.
ON 25.5.2002, due to sudden massive heart attack, father of respondent died. Intimation to this effect was given to the petitioners and relevant documents for settlement of claim were also tendered, but petitioners paid no heed. Non-release of insured amount to the respondent is clear cut negligence and deficiency in service on the part of the petitioners and prayed for acceptance of complaint by directing the petitioners.
PETITIONERS filed the written statement and took the plea that there is no negligence or deficiency in service on their part. Respondent has not come with clean hands and has concealed the true and material facts. The deceased was suffering from Chronic Heart disease before taking the insurance policy, but he did not disclose pre-existing disease in his proposal form and obtained the policy by stating wrong facts regarding his state of health. As per policy condition no.6, the policy is void and nothing is payable under the policy. The contract of life insurance is based upon good faith and the life assured before taking the policy, is bound to disclose the true state of facts regarding his state of health. The preliminary investigation conducted on behalf of petitioners have proved that the life assured was not having good health at the time of taking LIC policy. Report of Dr. Alok Kapoor is self speaking in this regard and prior to this, deceased was admitted in Sharma Hospital but the life assured did not disclose his bad state of health in his proposal form and mislead the petitioners to take the insurance policy. The policy commenced from 5.4.2000 and life assured died on 25.5.2002, which clearly reflects the bad and malafide intention of deceased life assured. So, there is no negligence or deficiency in service on the part of the petitioners.
DISTRICT Forum allowed the complaint of the respondent and passed the following directions ; "We allow the complaint of the complainant and direct the respondents to release the insured amount of Bhagwan Singh to the complainant with other benefits along with interest @ 12% p.a. from the date of death of insured till the date of realization of final payment. The respondents are further directed to pay a sum of Rs.10,000/- to the complainant as compensation on account of mental agony, harassment and litigation expenses due to the negligence and deficiency in service on the part of the respondents. "
AGGRIEVED by the order of District Forum, petitioners filed an appeal before the State Commission which was dismissed vide impugned order.
THIS is how the matter has reached before this Commission. 8. Respondent did not appear in this revision petition inspite of service.
IT is contended by learned counsel for the petitioners that respondent has taken contradictory stand and has filed false affidavit stating that his father never suffered any ailment and it was first sudden heart attack. As per facts of this case, respondent was admitted in Sharma Hospital and was referred to Dr.Alok Kapur ''s Hospital for treatment Chronic Obstructive Artery Disease (COAD) C with CHF and DM and swelling of feet for the last ten to fifteen days. Thus, respondent has concealed the material facts in its proposal form with regard to the pre-existing disease.
OTHER contention is that, both the fora below has wrongly given weightage to the second affidavit filed by Dr.Alok and failed to see the history record of the patient. The first affidavit clearly goes on to show that the life assured suffered from disease, which was chronic in nature and was not a sudden development. It is a common knowledge that diabetes mellitus does not flare up in a short span of time and as such policyholder has played a fraud knowing fully well that he has made false statements to obtain policy in question.
IN support, learned counsel has relied upon Life INsurance Corporation of INdia Vs. Sharanabasappa (RP No.486 of 2006) decided by this Commission on 5.10.2009.
THE short question which arise for consideration is as to whether there was any pre-existing disease in this case and whether policy holder has not furnished correct information in his proposal form.
DISTRICT Forum, in this regard has held ; "It is crystal clear from the pleadings that the father of the complainant was insured with the respondents vide policy in which the complainant was the nominee. The repudiation of claim on the ground that the complainant has concealed the true and material facts and has suppressed the factum of disease which the life assured was having prior to taking of the policy, is based upon the report submitted by Dr. Alok Kapoor who tendered the affidavit in favour of the respondents who rebutted the affidavit tendered by himself and made clear in the affidavit submitted in favour of the complainant that in the previous affidavit, I had specially mentioned that congested Heart Failure (CHF) of deceased Bhagwan Singh and secondary infection are of sudden onset. It means that congested heart failure may have resulted all of a sudden and it may not be chronic disease. Secondly, it was pleaded by the respondents that the insured was admitted in Sharma Hospital, but no report regarding the admission in the Sharma Hospital is on the file. The authority supra cited by the learned counsel for the respondents are not disputed, but are not helpful to the present facts and circumstances of the case in hand as it is not proved that the insured was having any pre-existing disease prior to taking of the policy. The authority supra tendered by the learned counsel for the complainant are very helpful on all aspects. Even otherwise, it is proved by our Hon ''ble State Commission in the authority that if the doctor of the respondent examined the insured prior to taking of the policy and no ailment was detected at the time of cross-examining by the doctor of the respondent, the accepting of claim of insured is just and proper. So far the dispute regarding tendering of two affidavits by the same doctor for the same patient and cutting in the affidavit is concerned, it is proved on the file that the cutting was made in the affidavit prior to signatures of the deponent i.e. Dr. Alok Kapoor and prior to attestation of the affidavit by the Oath Commissioner. So, by tendering the affidavit, the doctor has not committed any mischief. Hence, the plea taken by the complainant to punish the respondent/doctor is not tenable and is declined, but there is clear cut negligence and deficiency in service on the part of the respondents. Resultantly, we allow the complaint of the complainant. "
STATECOMMISSION, while concurring with the findings of District Forum observed ; "Adverting to the facts of the present case, it would be noticed that Bhagwan Singh had taken the insurance policy on 5.4.2000 for a sum of Rs.1 lac. At the time of filling up the form, he maintained that he was having good physical health and was fully fit. It was also stated that he was not suffering from any disease. Bhagwan Singh, thereafter, died on 25.5.2002, so to say after two years of taking insurance policy due to sudden heart attack. The complainant has furnished his affidavit in support of his claim. The opposite parties investigated the matter and collected the report of Dr. Alok Kapoor who stated in his affidavit dated 28.2.2004 that the deceased was suffering from Chronic Obstructive Artery Disease c congested Heart Failure c Diabetes and on the basis of this affidavit it was contended from the side of the opposite parties that the deceased had suffered heart disease prior to the date of taking of the policy as it was a Chronic Obstructive Artery Disease c congested Heart Failure c Diabetes. The stand taken from the side of the opposite parties has been sought to be falsified on record from the side of the complainant on two counts. Firstly, that Dr. Alok Kapoor has submitted another affidavit wherein he has categorically stated that he had given an affidavit dated 28.2.2004 on the asking of Life Insurance Corporation of India regarding the treatment of Bhagwan Singh son of Shri Amar Singh, Resident of Gandhi Nagar, Jagadhri District Yamuna Nagar. He has also stated in his affidavit dated 28.2.2000 in para no.3 that he has specifically mentioned about the congested Heart Failure (CHF) of Bhagwan Singh son of Shri Amar Singh and secondary infection are of sudden onset. It means that congested heart failure may have resulted all of a sudden and it may not be a chronic disease. He further stated that in para no.1,the patient had admitted for chronic obstructive airways disease and not for chronic obstructive artery disease. In fact airways word was cut and artery word was wrongly written. During the course of evidence, the District Forum has come to a definite finding that cutting was made in the affidavit of Dr.Kapoor prior to signature of the deponent i.e. Dr.Alok Kapoor and prior to attestation of the affidavit by the Oath Commissioner. Thus, it was concluded that Doctor had not committed any mischief and did not deem it necessary to accept the prayer made from the side of the complainant to take any action against the doctor. We, on our part do not approve the conduct of Dr.Alok Kapoor as he has backed out of his first version given in his affidavit by trying to explain with regard to change of his opinion in his second affidavit. It is not his case that any pressure was exercised upon him when he had given his first affidavit. It is not his case that any fraud was practiced upon him by the opposite parties when he furnished his affidavit. He has not realized that he had taken the risk of proceedings being taken against him for having purged himself by resiling from his first affidavit. We do not propose to proceed further in this regard by leaving the matter by observing hopefully that he would be careful in future. At the same time it cannot be ignored that the opposite parties could not muster any other evidence regarding pre-existing disease of the deceased. Even the first report of the Dr. Alok Kapoor is taken into account on its face value and the cutting of the wrods expression "Airways " and correcting the expression as "artery " is ignored, the entire affidavit read as a whole would not in any manner fix the period that the deceased was suffering from the above stated Chronic Obstructive artery disease c congested Heart Failure c Diabetes before taking the policy. During the course of arguments nothing was brought to our notice that when the disease is construed as chronic disease, it should have particular age of the disease as prior to the date of proposal form submitted by the assured on the date of examination so as to declare that it was a chronic disease. Thus, under the circumstances of the case, the stand taken by the opposite parties that the deceased had not correctly answered the questions at the time of submitting the proposal form and had suppressed the factum of pre-existing disease as noted by Dr.Alok Kapoor, as such, is not substantiated on record. For the reasons stated above, differ than what were recorded by the District Forum, we find no merit in the appeal and the same is consequently dismissed. "
IT is really very unfortunate that petitioner being the leading Life Insurance Company of this country and also being a Public Sector Undertaking, is fighting this litigation for last nine years just to deprive the legal heir of the deceased Bhagwan Singh (the life assured) paltry sum of Rs.one lakh (being the sum insured). Inspite of severe strictures having being passed by the fora below against petitioner ''s witness Dr.Alok Kapoor, petitioners are still beating the bush with tainted affidavit of this doctor against whom District Forum has observed ; "The repudiation of claim on the ground that the complainant has concealed the true and material facts and has suppressed the factum of disease which the life assured was having prior to taking of the policy, is based upon the report submitted by Dr.Alok Kapoor who tendered the affidavit in favour of the respondent who rebutted the affidavit tendered by himself and made clear in the affidavit submitted in favour of the complainant that in the previous affidavit, I had specially mentioned the Congested Heart Failure (CHF) of deceased Bhagwan Singh and secondary infection are of sudden onset. "
WHEREAS, State Commission with regard to the conduct of Dr.Alok Kapoor has observed ; "We, on our part do not approve the conduct of Dr.Alok Kapoor as he has backed out of his first version given in his affidavit by trying to explain with regard to change of his opinion in his second affidavit. It is not his case that any pressure was exercised upon him when he had given his first affidavit. It is not his case that any fraud was practiced upon him by the opposite parties when he furnished his first affidavit. He has not realized that he had taken the risk of proceedings being taken against him for having purged himself by resiling from his first affidavit. We do not propose to proceed further in this regard by leaving the matter by observing hopefully that he would be careful in future. "
THUS, in view of the concurrent findings of facts given by the two fora below that there has been no suppression of factum of pre-existing disease and the heart failure in this case was sudden and the same was not chronic, we find that no reason to disagree with their reasoning.
DECISION ofSharanabasappa (supra)as cited by the learned counsel is not applicable to the facts of the present case in view of the contradictory affidavits given by the concerned doctor in this case.
PRESENT revision petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 (for short ''Act '').
IT is well settled that the powers of this Commission as a revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. "
EVEN, after getting two adverse findings, petitioners have chosen not to settle the claims of the respondents but have dragged them to the highest Fora under the Act.
IN the present petition, no jurisdictional or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
IT is not that every order passed by fora below is to be challenged by a litigant even when the same are based on sound reasoning.
IT is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
PUBLIC Sector undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. PUBLIC Sector undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that PUBLIC Sector undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
THE Apex Court in BikanerUrban Improvement Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely, 4. "It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. THEy should be responsible litigants. THEy cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. THEy cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. THEy are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. THEir harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected. 5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.): "THE State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State ''s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. THE State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. THE lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. " 5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held: "2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. " 5.3 In a three-Judge Bench judgment of Bhag Singh and Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737. "3. THE State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. " 6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. THEy are: (i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision. THE reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. THEir reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. THE Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. THE State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants. 7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. THE Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation. "
IN Ravinder Kaur Vs. Ashok Kumar, AIR 2004SC 904, Apex Court observed: "Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law ''s delay and bringing bad name to the judicial system. "
SINCE two fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of Rs. 50,000/-( Rs. Fifty Thousand only). Out of this, Rs. 25,000/- shall be deposited in '' Consumer Legal Aid Account '' and the balance amount of Rs. 25,000/- of cost be paid to the respondent.
PETITIONER is directed to deposit the cost by way of cross-cheques, one in the name of ''Consumer Legal Aid Account '' and other in the name of the respondent, within four weeks from today.
MEANWHILE, petitioner shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less and frivolous litigation, with the sole aim of wasting the public exchequer. The affidavit giving the details of the officers from whose salaries the cost has been recovered, be also filed within four weeks.
HOWEVER, the cheque for the sum of Rs. 25,000/- in the name of respondent, shall be paid to him only after the expiry of the period of appeal or revision preferred, if any.
LIST on 24.2.2012 for compliance.