NEW INDIA ASSURANCE COMPANY LIMITED vs NALINI HARESHBHAI BHATT

-THIS appeal arises from order dated 17.10.2000 rendered by the learned Consumer Disputes Redressal Forum, Gandhinagar in Complaint No. 55 of 99 directing the opponent Insurance Company to pay to the complainant medi-claim amount of Rs. 24,155/- spent by the complainant for the operation to the right ear undergone by her and interest @ 12% p.a. from the date of complaint till payment along with cost of the complaint quantified at Rs. 1,000/-. We have heard the learned Advocates for the parties. We have gone through the impugned order. We have also gone through the memorandum of appeal as well as the reply filed by the complainant.

THE only question that is required to be decided by this Commission is whether the complaint was liable to be dismissed on account of rightful repudiation of claim due to suppression of material fact. It has been alleged that the complainant was operated for left ear 10 years before for the purpose of treatment of perforation (tympanoplasty). THE question in the proposal form to be answered by the complainant is worded to this effect. "Any dimness of vision or any difficulty of hearing." THE complainant answered this question in the negative. It is not the case of the opponent Insurance Company that when the proposal form was filled in, the complainant had any difficulty of hearing either with left ear or right ear. This question does not take within its sweep the operation performed on the left ear ten years before the date on which the proposal form was submitted. Besides, the opponent Insurance Company has not placed on record certificate of any doctor indicating that the operation of left ear was minor or major or was directly related to difficulty of hearing. Under such circumstances, the opponent Insurance Company cannot be heard to say that the complainant suppressed material fact which she was required to disclose at the time of submitting the proposal form. THEre is no suppressio veri on the part of the complainant and this can be visualised from the fact that she had disclosed the surgery with regard to limpoma (it is spelt as lympoma in the proposal form) on back of shoulder. THE particulars of this surgery undergone in the year 1983-84 have also been set out. If that is so, it will be difficult to impute against her any fraudulent intention. It might be noted that the proposal form is vague in nature inasmuch as in the relevant questionnaire no prior period is set out. Thus, bearing in mind the facts and circumstances of the present case, it prima facie appears that there was no suppression of material fact on the part of the complainant. This is over and above the fact that the opponent Insurance Company has not placed on record either certificate or affidavit of concerned doctor (Dr. Khandekar) who is stated to have operated the left ear of the complainant 10 years before the date on which the proposal for medi-claim was submitted by her. It is settled law that contract of insurance has to be liberally construed in favour of the insured. Insofar as questions of rate of interest and cost are concerned, it has not been pointed out from the side of the complainant that the repudiation was mala fide in any manner. Hence, relying upon the decision of the Apex Court in Kaushnumma Begum v. the New India Assurance Company Limited, reported in I (2001) SLT 300=I (2001) ACC 151 (SC)=(2001) 2 SCC 9, we propose to reduce the rate of interest from 12% to 9% and set aside the order of cost. In that view of the matter following order is passed: ORDER 1. Impugned order dated 17.10.2000 rendered by the learned Consumer Disputes Redressal Forum, Gandhinagar in Complaint No. 55 of 99 is maintained except with regard to rate of interest which is reduced from 12% to 9% and order of cost of Rs. 1,000/- which is hereby set aside. This appeal is accordingly partly allowed, with no order as to costs throughout.

Opponent Insurance Company is stated to have deposited Rs. 30,436/- in this Commission on or around 15.3.2001. Office to verify the amount and pay the amount as per the modified order to the complainant by A/c. Payee cheque. Balance amount with interest, if any, lying in this Commission shall be refunded to the opponent Insurance Company by A/c. Payee cheque. If any amount still remains payable, the same shall be paid by the opponent Insurance Company to the complainant within six weeks from today.

Appeal partly allowed.