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Judgment
BEING aggrieved by the decision of the District Forum, Mehsana in complaint No. 36/92, the original opponent has filed this appeal.
THE short question that arises for our consideration is whether the insured was suffering from brain tumor on the date when the proposal was made. It appears that the proposal was made on 25-5-1991 as seen from the original record. THEre was a medical examination by one doctor B.J. Patel on 29-5-1991 and thereafter policy has also been issued. THE case was adjourned two to three times to enable the Insurance Company to file the written statement. THE written statement alongwith several important annexure was filed on 10-4-1992 and without giving any opportunity to any party for proving the documents or adducing any evidence, the matter was heard and disposed of as seen from the proceedings as well as from the judgment. We have time and again stated in our judgments that after the filing of the written statement both the parties should be informed regarding their rights and the District Forum ought to have asked the parties to file their affidavits in support of their respective claims. Neither the complainant nor the opposite party has filed any affidavit in support of their claims. It has been well settled by the highest Court of the country that pleadings are the case of each party and not the evidence. The averments made in the written statement must be proved by evidence which may be in the form of affidavit, oral evidence or documentary evidence. Even the documentary evidence shall have to be proved by production of the documents or certified copy thereof or by admission by the other side. In the instant case, though there was a very important issue raised, and death of the insured soon after taking the policy and the alleged previous treatment taken by him are relevant considerations to arrive at a finding. None of the parties has examined the doctor because they had no time to do so.
Mr. Desai, the learned Counsel appearing on behalf of the Insurance Company requested for time to enable the Insurance Company to produce the certificates from the doctors who had examined the insured prior to the proposal. The learned Judge has mentioned in the judgment and the Insurance Company could not produce the certificates from Dr. Chandrak Pandya or Dr. Kanak P. Shah. Mr. Desai produces a certificate of Dr. Kanak Shah in appeal. But the same having not been produced before the District Forum, we cannot act upon the same. However, in this matter no party has produced any evidence and, therefore, it would be in the interest of justice to remand the case to the District Forum to enable the parties to produce affidavit in support of their respective claims and documents on which they rely or to produce oral evidence. ORDER The appeal is allowed. The decision of the District Forum is set aside. The case is remanded to the District Forum with the direction that the District Forum will give opportunity to both the parties to file affidavit or produce oral evidence and/or any other document, if they so desire. The District Forum will dispose of the matter after hearing the parties. In the circumstances there will be no order as to costs. Appeal allowed.