Life Insurance Corporation of India vs NALINI JOSHI

THIS is an appeal against the order dated 5th February, 1992 passed by Consumer Disputes Redressal Commission, Rajasthan at Jaipur in Complainant case No. 153 of 1990. The said complaint was filed by Smt. Nalini Joshi-present Respondent against Life Insurance Corporation of India through its Chairman, Head Office at Bombay and its Upper Regional Manager, and Branch Managers of Divisional Office and the Branch Office, all the latter three located at Jaipur. The present appeal has been filed by all the above named Opposite Parties.

BEFORE we proceed further we may record here that the costs awarded by this Commission vide order, dated 17th November, 1993 to the Respondent have been paid by the Appellants at the time of hearing of this Appeal. It is not necessary to give in detail the facts of the case as vide this order we intend to remand the case to the State Commission for fresh disposal. It will suffice to mention here that that Shri Kuldeep Pareek-husband of the Complainant - Respondent Smt. Nalini Joshi, had obtained three policies on different dates from the Life Insurance Corporation of India (for short the Corporation). All the three policies covered accident risks. The last policy for Rs. 50,000/- commenced on 1.4.1989 and the quarterly premium payable was 1139.40. Shri Kuldeep Pareek deposited the premium as and when the premium notice was received. According to the Complainant-Respondent, on 12.11.1989 at about 4.00 p.m. while her husband was going on scooter, the scooter slipped and her husband fell down and became unconscious. Shri Kuldeep Pareek was removed to S.M.S. Hospital, Jaipur where he died on the morning of 13.11.1989. The Complainant preferred a claim under the policies. The Corporation paid the insurance amount under the first two policies but did not pay the accident benefit. The claim under the third and last policy was wholly repudiated. The plea of the Corporation was that at the time of taking the policy the husband of the claimant was suffering from diabetes for which he was taking treatment and he had suppressed that fact at the time of making the various proposals. It was also averred by the Corporation that the injury to the deceased was not of such nature so as to cause death and in fact on account of disease of the diabetes, he could not be treated for the injuries caused due to the accident. The State Commission held that: "It was for the opposite parties to prove that the insured has suppressed material facts about the illness at the time of filling the proposal Form. The burden was no them which they failed to discharge. Mr. Kuldeep Pareek died on account of the skull injury and there is no proof that he suppressed the material fact that he was suffering from diabetes at the time of filling the proposal Form".

Accordingly the State Commission allowed the accident benefit to the claimant under the earlier two policies (as the insured sum had already been paid) plus the insured sum and the accident claim benefit under the third and last policy. Interest @ 13 % was also allowed to the claimant from the date of death of her husband till payment.

Feeling aggrieved the Corporation and its various officers named above have filed this appeal. The learned Counsel for the Appellant svehemently argued that in the Course of proceedings before the State Commission the Opposite Parties, who are now Appellants, had moved an application on 6th October, 1991 praying inter alia that Dr. V.K. Purohit be summoned to testify on the state of health of the insured de- ceased but the State Commission did not pass any order on that application nor was the said witness summoned to depose about the health of the deceased. It was the contention of the Opposite Parties before the State Commission that Shri Kuldeep Pareek was treated for diabetes mellitus for 2-1/2 years prior to his death by Dr. Purohit.

THE complainant and her witness have filed affidavits. THE Complainant denied that her husband was ever treated by Dr. V.K. Purohit for the disease of diabetes. It appears that thereupon the Opposite Parties had filed the above application to summon Dr. Purohit to controvert the allegation of the Complainant and to prove their case that the deceased was suffering from diabetes mellitus for 2-1 /2 years prior to his death. As noticed earlier the contention of the Corporation is that the deceased did not die due to the injuries suffered by him due to the accident but that he could not be treated well as he was suffering from diabetes. In such circumstances the examination of Dr. V.K. Purohit became very essential and natural justice required that the party to a cause should be afforded a fair opportunity to adduce evidence in support of its contention. It appears that the said application filed by the Opposite Parties was opposed by the Complainant. Even now the Complainant-Respondent has alleged in the reply filed to the memorandum of appeal that there was no need to pass any direction on the so called application for summoning of witness filed by the Opposite Party-Appellants and it was the duty of the Opposite Party-Appellants to submit the affidavits of the witnesses whom they wanted to examine. A witness may or may not like to give his affidavit and he may or may not appear in a Court or before a Tribunal or Forum on the mere asking of a party. In such circumstances the only course open to the party is to seek the help of the Court or Tribunal to compel the attendance of the witness for giving his statement. Therefore, it cannot be said that the Appellants were not entitled to summon Dr. Purohit to controvert the allegations of the Complainant and to prove the case of the Corporation.

AFTER consideration of the arguments advanced before us and on going through the records we are of the opinion that the State Commission was not justified in not summoning Dr. Purohit for whose summoning the Opposite Parties had filed an application. Therefore, we have no other alternative but to accept the present appeal and remand the case to the State Commission for fresh disposal after giving an opportunity to the Opposite Parties to summon Dr. Purohit. We order accordingly. In the circumstances of this case we do not made any order as to costs. Order accordingly.