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REVISION PETITION No.223 OF 2009

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REVISION PETITION No.223 OF 2009

 (Against order dated 07.10.2008 in First Appeal No.  983 of 2008 of the State Consumer Disputes Redressal Commission, Gujrat Ahmedabad)

  

1.  Regional Provident Fund Commissioner, Provident Fund Organization, Bhavishya Nidhi Bhawan, Near R.B.I. Income Tax Circle, Ahmedabad-380 014. 



2.  Central Provident Fund Commissioner, Employees’ Provident Fund Organization, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Marg, New Delhi-110066.

                 .... Petitioners

            Versus

1.  Subhadraben Jayantilal Mehta, 66/B, Som Smruti Nigam Society, Swaminarayan Mandir Road, Near Ghodasar Kans, Vatva-I, Ahmedabad-382445

2.  Hemang Mukundray Bhatt, Managing Director Noble Detective & Security, 506, Hare Krishna Complex, Opposite Kothawala Flat, Near Pritamnagar Dhal, V.S. Hospital Road, Paldi, Ahmedabad-380007.

          .... Respondents

 BEFORE:

     HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

     HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioners :  Mr. Rajesh Manchanda, Advocate

For the Respondents  :  Mr. Paresh J. Mehta, Advocate for R-1

Respondent No.2 is exparte.                      



Pronounced on: 18th July, 2014

ORDER 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER 

     In this Revision Petition, there is challenge to order dated 07.10.2008, passed by the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad(for short,‘ConsumerCommission’) in Appeal No.983 of 2008.


2.   Brief facts are that Respondent No.1/Complainant, aged 78 years old is widow of deceased subscriber late Shri Jayantilal Somalal Mehta, who was member of Provident Fund bearing A/c.No.GJJ/5747-A/338, for the period from 1998 to July, 2006. At the time of his death, deceased was having amount of Rs.1,02,285/- as  existing credit upto October, 2006 in his account. Petitioners/Opposite Parties No.1 and 2 are managing PF accounts and providing all benefits under Employees Deposit Link Insurance Scheme,1976(for short,‘E.D.L.I, 1976 Scheme’)Employees’ Pension Scheme, 1995 and Employees Provident Fund Scheme,1952. Respondent No.2/Opposite Party No.3 was the employer of the deceased, where deceased wasperforming his duty as Administrative Officer from 1998 to 2006 July, till death. After death of the deceased, respondent no.1 filled Form No-5(IF) E.D.L.I,1976 Scheme and submitted the same to the petitioners, claiming benefits of death claim in 2006.

3.   It is further stated that respondent no.2 did not deposit PF and other allied dues of the deceased from 1998 to 2006, thus violating the provisions of EPF & MPF Act,1952. Moreover, petitioners have failed to take any action against respondent no.2 for default, for the period from 1998 to 2006.  

4. It is further alleged that petitioners rejected the EDLI Benefits claim, through order dated 20.11.2007 which is absolutely illegal and unreasonable. Hence, respondent no.1 filed a Consumer Complaint before the Consumer Disputes Redressal Commission, Ahmedabad City (for Short, ‘Consumer Forum’) seeking following reliefs:-

A.  To direct the Opponent No. 1 RPFC to release the EDLI benefits in tune of Rs.75,000/-through payment in favour of the complainant widow of late deceased J.S. Mehta with 12% interest from the date of settlement of claim received by the RPFC i.e. 16.10.2006 upto the date of release the amount deducting the delay payment  amount from the salary of the RPFC as per the provision of EDLI Scheme, 1976.

 


(B)  To direct the Opponent No.3 Employer Establishment to deposit Rs.65,000/- with 12% cumulative interest from 1998 to 2006 in PF account of late Shri J.S. Mehta GJ/5747-A/338 or directly payment through demand Draft of said dues in tune of Rs.65,000/- plus 12% cumulative interest for the period of default in the interest of justice.

 

(C)  To direct the Opponent No. 1 to pay Rs. 30,000/- towards mental agony and Rs. 20,000/- towards delay in maintenance of livelihood of widow aged : 78 years in the interest of justice.

 

(D)  To direct the Opponent No.1 to pay Rs.15,000/- towards compensatory and exemplary cost to the complainant in the interest of justice.

 

(E)  To grant further necessary appropriate order in the interest of justice and fairness.

 

(F)  Be pleased to pass appropriate order quashing and set aside the Rejection Order dated 20.11.2007 Ref. No. GJ/ PFC/AHD/5747-A/338/940 Annexure-F in the interest of justice”.  

 

5.   Petitioners in their reply took the plea that no cause of action has arisen against them, as there is no deficiency in services or negligence towards the services given by them to the respondent no.1. Late husband of respondent no.1 had not contributed P.F. and no amount was received by the petitioners. Hence, respondent no.1 is not a consumer.  


6.  On the other hand, Respondent No.2-the employer of the deceased, in its written statement has stated that deceased (husband of respondent no.1) was working with their company from 1.5.1990 after retirement from Limdi Municipality as a Chief Officer i.e. after attaining the age of 60 years. Since, he had resumed the duty, he was also covered under the EPF & MP Act,1952and  was given the benefits by respondent no.2. The deceased had worked with their company upto August, 1998. Thereafter, he left the job for his own reasons. Thus, deceased had never worked as an employee of respondent no.2. Hence, respondent no.2 never paid him salary or wages after August,1998. Moreover, no contribution of Provident Fund had been deducted from his salary. Therefore, question does not arise to deposit the contribution with the provident fund department.


7.   It is further stated that deceased was close friend of one of director of the company. Therefore, he was occasionally visiting the office of respondent no.2. Moreover, deceased also started the social work after August, 1998 and had also written some books and taken part in Corporation Election as an Independent Candidate. Further, deceased was helping and advising the company and its director and the management in day today activity, business, administration and in some legal matters honorarly. Hence, deceased was never engaged as a work man after August, 1998 by respondent no.2. Therefore, respondent no. 1 is not entitled for any benefit as demanded under the E.P.F.& M.P.Act,1952.

8.   Additional Consumer Disputes Redressal Forum Ahmedabad (for short,‘District Forum’)vide order dated 14.07.2008, allowed the complaint of the respondent no.1 and passed the following directions;

Opponent No.1 is directed that from the date of this order within seven weeks remaining due amount of late husband of complainant regarding the benefit of E.D.L.I. and Provident Fund contribution the said amount will be fixed after hearing to the opponent no.3 and will pass an order to deposit the said amount against opponent no.3. And during their inquiry if found that any amount received and will fix so then such amount opponent no.3, opponent will be liable to pay 9% interest from the date of 16.10.2006 and will be pass such order.

     Opponents jointly pay the amount of Rs.2,000-(Rupees Two Thousand) regarding cost of complaint”.

 

9.   Petitioners being aggrieved by the order of District Forum, filed an appeal before the Consumer Commission which dismissed the same, vide its impugned order.


10.  It would be pertinent to point out that neither Respondent No.1-Complainant nor Respondent No.2-The Employer, filed any appeal against the order of the District Forum as well as that of the State Commission. Thus, orders of Fora below have become final, qua respondent no.1 and 2.

11.  Now petitioners have filed the present revision.

12.  Notice of revision was issued to the respondents. Respondent No.1 had put in appearance through her advocate and has filed written arguments. Though, respondent no.2 did not appear either in person or through its counsel, but it has also filed its written submissions.

13.  We have heard the learned counsel for the petitioners as well as counsel for respondent no.1  and have also gone through the entire record and perused the written submissions.

14.    Case of complainant is, that Respondent No.2-the employer of her deceased-husband has not deposited its contribution and allied dues from 1998 to 2006. Thus, respondent no.2 has violated the provisions of E.P.F.& M.P.Act,1952. Therefore, petitioners have the statutory power to take legal action against respondent no.2, but they have failed to take any such action .

15.  On the other hand, defence of respondent no.2 is, that husband of respondent no. 1 was never its employee for the relevant period.

16.   Therefore, the questions which arise for consideration is, whether deceased-husband of respondent no.1 was the employee of respondent no.2 and if so, what was his pay and other emoluments. Further, which post deceased was holding under respondent no.2 and what was the deceased’s share of contribution. Lastly, whether the deceased was employed with respondentno.2 for the relevant period. 17.     The initial onus to prove its case rest upon respondent no.1. However, she has not placed any documentary evidence on the record, so as to show which post her husband was holding, what was his salary and since when he was employed with respondent no.2. Lastly, respondent no. 1 has not even mentioned the amount which the deceased was contributing as his share.


18.   Furthermore, respondent no. 1 has not placed on record even the letter of appointment, terms and conditions of the service and the pay/salary slip, so as to show what emoluments the deceased was drawing at the time of his death.

19.  In the absence of above material pieces of evidence, we have no hesitation in holding that the complaint filed by the respondent no.1 is not maintainable on the face of it.

20.  Be that as it may, now it is to be seen as to what is the effect of the order passed by the District Forum.   

21.  In pursuance to the order of the District Forum, proceedings were initiated under Section 7-A of the E.P.F.& M.P.Act,1952 against respondent no.2, for determination of Provident Fund and allied dues for the period from October, 1998 to July, 2006 in respect of late Sh.Jayantilal S.Mehta-P.F. A/c. No.GJ/5747-A-338.

22.   Sh. C.S. Tiwari, the Assistant Provident Fund Commissioner after conducting the inquiry proceedings, vide his order dated 31.1.2013, held that he does not find any substance and force in law to make the respondent no.2 liable to remit PF contribution in respect of late Sh.Jayantilal S. Mehta for the period from October, 1998 to July,2006 and also to make the department liable for payment of assurance benefits.   Relevant portion of the Order of the Assistant Provident Fund Commissioner read as under;

I have gone through the submissions made by the establishment, Smt. Subhadraben J. Mehta and Shri. R. B. Patel, Enforcement Office, on behalf of the department and the documents available on record and produced before me and observed that;

    

(1)          Late Shri Jayantilal S. Mehta was employed by the establishment at the age of more than 59 years(date of birth—2/10/1930).

 


(2)          The establishment extended Provident Fund benefits and remitted Provident Fund contributions 
upto 08/1998 i.e. upto the age of 68 years.

 

(3)          The establishment submitted that he was not in employment after August 1998, but was engaged as consultant for Legal matters.

 

(4)          As per the establishment no salary has been paid to 
Shri Jayantilal S. Mehta during the period from September, 1998 to July, 2006 and as such Provident Fund contribution not deposited.

 

(5)          There is no complaint, regarding non remittance of Provident Fund contribution made by 
Shri Jayantilal S. Mehta during his life time, available on record.

 

(6)          The establishment has not produced any record related to 
Shri Jayantilal S. Mehta for the period from October, 1998 to July, 2006 on the plea that the old record have been weeded out by them.

 

(7)
          The wife of late Shri Jayantilal S. Mehta has also not produced any documentary evidence to the effect that Shri Jayantilal S. Mehta was drawing salary.

 

(8)          Shri Jayantilal S. Mehta died after attaining the age of 75 years.

 

(9)          The establishment stated that Shri Paresh J. Mehta son of Late Shri Jayantilal Mehta was their Advocate.

 


10. Shri Paresh J. Mehta submitted a copy of Form No.5 (IF) and other related documents i.e. claim application submitted to PF department for receiving available benefits, whereas the same was required to be submitted to the PF Office by the employer itself in accordance with provisions of Para 72(5) of the EPF Scheme 1952 and as such it appears that Sh. Paresh J. Mehta might have taken signature of the employer in good faith on claim application and other related do documents as stated by the establishment.

 

     Further, the Wife of late Shri Jayantilal S. Mehta has submitted that her husband was working as Adm. Manager from 1988 to 2006 till death and as such question arises that:



 

(i)         As to why Sh. Jayantilal S. Mehta has not deducted P.F. contribution from his own salary and deposited with the P.F. Department, if he was getting salary.

 

(ii)       As to why the establishment has stopped deducting P.F. contribution for the period from September, 1998.

 

It appears that late Shri Jayantilal S. Mehta himself was responsible for non- deduction of P.F. contribution from his salary, if getting, and for deposition with the P.F. department.

 

    The Government of India enacted Employees’ Provident Fund & Miscellaneous Provisions Act 1952, Employees’ Provident Fund Scheme, 1952, Employees’ Pension Scheme 1995 and Employees’ Deposit Linked Insurance Scheme 1976 with the intention to provide social security benefits upto a certain age limit.


 

     In my opinion, no Act in India assures social security benefits/life assurance benefits to a person who dies after attaining the age of 75 years without paying additional contributions/ premium. Further, the intention of the employer also does not appear to be bad as they have contributed to the Fund for the period upto August, 1998.

 

      In view of the facts and circumstances narrated herein above, I do not find any substance and force in the submissions made by Smt. Subhdraben J. Mehta the wife of Late ShriJayantilal S. Mehta during the course of inquiry and also have no ground to disbelieve the submissions made by the establishment.


 

 Further, I do not find any substance and force in law to make the establishment liable to remit PF contribution in respect of Late Shri Jaynatilal S. Mehta for the period from October, 1998 to July, 2006 and also to make the department liable for payment of assurance benefits to whom who died after attaining the age of 75 years and inclined to close the case without determination of any dues.

 

      Thereafter, in the light of the above discussions I.C.S. Tiwari Assistant Provident Fund Commissioner, Regional Office Ahmedabad in exercise of the powers conferred upon me under section 7A of the Act hereby close the inquiry initiated against the establishment for determination of dues in respect of Late Shri Jayantilal.S. Mehta, PF. Account No.GJ/5747-A/338 for the period from October 1998 to July, 2006 without determination of any dues.



 

23.   Thereafter, respondent no.1 filed an application dated 25.2.2013 seeking review of order dated 31.1.2013. That application was rejected by the Assistant Provident Fund Commissioner, vide its order dated 26.6.2013.

24.  In view of the above discussion, we have no hesitation in holding, that respondent no.1 has miserably failed to prove its case, that her husband was ever employed with respondent no.2 for the period from October, 1998 to July, 2006. Further, in view of the inquiry conducted by the Assistant Provident Fund Commissioner, in pursuance of the District Forum’s order, no liability can be fastened either upon respondent no.2 or on the petitioners.

25.  Under these circumstances, the impugned order passed by the State Commission stand set aside. Accordingly, the revision petition stand allowed and the complaint filed by the respondentno.1 before the District Forum stand dismissed.  


26. Parties shall bear their own cost.

 …………………………



(V.B.GUPTA,J)

 (PRESIDING MEMBER)

………………………… 

(REKHA GUPTA) 

MEMBER

SSB/


 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 236  OF  2013

 

Sushil Gupta s/o Sh. Ram Kishan Gupta r/o H.No.6580/2, Block No.9 Dev Nagar, Karol Bagh New Delhi – 110005, India



........ Complainant

Vs.                                             



International Department (Master Vintage International) Through Mr.Herve Salkin, Director General Ecole Superieure d’Agriculture (Groupe ESA) 55, rue Rabelais, B.P.30748 49007, Angers Cedex 01 France

Also At

Master Vintage International (Groupe ESA, Angers) Through its Chair person The Coordinator Campus France India French Cultural and Research Centre 2, Augangzeb Road New Delhi – 110011

......... Opposite Party

 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER     

For the Complainant         :    In person



PRONOUNCED ON :  18th  JULY, 2014

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER 

Shri Sushil Gupta has filed this consumer complaint alleging that he is a French language specialist.  In December 2008 the complainant applied for “Master Vintage InternationalMasters Degree Course” which was promoted by the Campus France India.  After a telephonic interview conducted by Groupe ESA, the complainant was selected on 11.05.2009. He received Erasmus Mundus scholarship from the European Commission to pursue the said course for two year duration from 2009-2011.  The complainant was asked to deposit 200 euros and he made said payment from his HDFC Bank credit card to Groupe ESA. Thereafter, he was invited to join the course in France. The masters degree course was divided into four semesters. The complainant passed first three semesters with good marks but failed twice in his last semesters “Professional Project”.  In the last semester, the complainant was required to do internship of six months with a company and to write an academic thesis.  To help the petitioner, services of tutor was assigned by Groupe ESA. It is alleged by the complainant that he failed twice in the last semester because of deficiency of service provided by the tutor in preparing thesis of required quality.  It is further alleged that the first internship was done by the complainant with Spanish Wine Company Vicente Gandia Pla in the subject of sales and marketing.  The internship was supposed to be completed on 31.07.2011.  The complainant was provided with tutor Mr. Gael Roul, Professor, Groupe ESA for writing his thesis.  The tutor did not help the complainant and went on holiday.  Consequently, the thesis submitted by the complainant was found to be not upto the standard.  It is alleged that the petitioner even wrote to the course coordinator that he was unhappy with the services and the assistance provided by the tutor.  The complainant again paid the fee of 3016 euros to Groupe ESA and started new internship in the field of sales and marketing with the hope that assistant and quality of service of new tutor would be good.  This time, the complainant was assigned Madam Caroline Dusautoir to help in preparing the thesis.  Even her services were not  upto the mark and this was reported to the Director General of Groupe ESA.  It is alleged that the complainant while preparing the thesis, followed the comments of the tutor and submitted final document to the tutor who gave OK report.  Thereafter, the complainant was called for oral presentation of his thesis on 10.10.2012.  After the oral presentation, the tutor told the complainant that his thesis and summary of thesis was not of the required quality and he was declared failed.  According to the petitioner, he had failed only because of deficiency of service provided by the tutor assigned to him.  Thus, he has filed consumer complaint and the summary of compensation claimed for is reproduced thus:

 


S.No.

Particulars

Amount (euro

1.

Refund for the tuition fees paid to Groupe ESA for the year 2009-2011 (Annexture 6)

Rs.15,26,400 (21,200 euro)

2.

Refund for the tuition fees paid to Groupe ESA for the year 2011-2012 (Annexture 12)

Rs.2,17,152 (3016 euro)

3.

Reimbursement of the expenses towards airfare, transport, lodging etc in October 2012 for travel to Groupe ESA, France for the oral presentation of the thesis

Rs.1,08,000 (1500 euro)

4.

Consequential damage for complainant’s future income loss at international level during his complete professional life

Rs.1,08,00,000(1,50,000 euro)

5.

Compensation for the physical, mental and financial harassment

Rs.72,00,000 (1,00,000 euro)

6.

Compensation for providing deficient services and the services of the substandard quality at international level


Rs.72,00,000

(1,00,000 euro)



7.

Compensation for the loss of 3 years of earning period

Rs.36,00,000

(50,000 euro)



8.

Litigation cost

Rs.55,000

9.

Total

Rs.3,07,06,552 (4,26,480 euro)

 

 

2.         We have heard the complainant on admission and perused the written submissions.  On perusal of the summary of the compensation claimed for, we find that the petitioner in this complaint is seeking refund of the tuition fee paid by him for the period 2009-2011 and 2011-2012 besides reimbursement of expenses towards air fare, transport, lodging etc in October 2012 for travel to Group ESA France for the oral presentation of the thesis, which amounts to Rs.18,51,552/-. Against the aforesaid actual amount paid or spent by the complainant, the complainant is seeking compensation to the tune of Rs. 2,88,55,000/- under various heads which is over and above the above noted alleged amount spent by the complainant.


3.         Under the scheme of the Consumer Protection Act, 1986 (in short, ‘the Act’) the original complaint can be filed in the District Forum or the State Commission or the National Commission depending upon the value of the cost  of the goods/services.  Section 11, Section 17 & Section 21 provides that pecuniary jurisdiction of the respective foras.  Section 11 provides that District Fora shall have jurisdiction to entertain complaints where value of the goods or services and compensation, if any, does not exceed rupees twenty lakhs.  According to Section 17, State Commission can entertain the complaints where the value of goods or services and compensation claimed  exceeds rupees twenty lakhs but does not exceed one croreand if the said value is more than rupees one crore, jurisdiction to entertain the original complaint lies with the National Commission as provided under section 21 of the Act.  Presently, no court fee on the claims preferred before the foras concerned is payable.  Therefore, tendency to defeat the hierarchy as per the scheme of the Act is always there.  Thus, in our considered view, the consumer fora at various level are required to guard against the inflated claims with malafide intentions to defeat the hierarchy of the foras concerned.  In the instant case, the amount allegedly spent by the complainant is only rupees eighteen lakh plus but he has added disproportionate demand of compensation of Rs.2,88,55,000/- approximately as compensation to bring this case within the jurisdiction of the National Commission.  The above act of the complainant obviously is malafide with a view to defeat the scheme of the Act. Thus, the complainant is liable to be dismissed on the ground that this Commission does not have pecuniary jurisdiction.  In our view, we are supported by three members Bench of this Commission in the matter of Praveen Kumar Singhia Vs. State Bank of India 2003 INDLAW NCDRC 144.  Otherwise also, on reading of the complaint, it is clear that complainant has failed in the course and he is trying to shift the blame for deficiency in service on the part of the tutor.

4.         In view of the discussion above, the complaint is dismissed with liberty to the complainant to file fresh complaint on the same cause of action before the appropriate forum.

………………………….


(AJIT BHARIHOKE, J)

(PRESIDING MEMBER)
…………………………

(SURESH CHANDRA)

MEMBER

Am/




NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION  NO. 380 OF  2013

(Against the order dated 14.12.2012 in Appeal No. 55/2009 of the State Commission Punjab, Chandigarh)

 

SBI Life Insurance Co. Ltd. Ist Floor, Kapas Bawan, Plot No.3A Sector No.10, Central Processing Center (CPC) CBD-Belapur Navi Mumbai-400614



........ Petitioner

  Vs.


 

1. Harvinder Kaur w/o Late Sh. Sukhvinder Singh r/o Village Kasba Bhural, Tehsil Malerkotla, Distt. Sangrur, Punjab 

2.  Gurdeep Singh Kehal r/o Village Sandaur Tehsil Malerkotla Distt. Sangrur, Punjab

......... Respondents

 BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 HON’BLE MR.SURESH CHANDRA, MEMBER     

For the Petitioner             :    Mr. Rakesh Malhotra, Advocate

For the Respondent         :    Mr. Prabhoo Dayal Tiwari, Advocate No.1

For the Respondent         :    Nemo No.2 



PRONOUNCED ON :   18th  JULY, 2014                                           

ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Consumer Disputes Redressal Commission Punjab, Chandigarh (in short, ‘the State Commission) dated 14.12.2012 in First Appeal No. 55/09 whereby the State Commission dismissed the appeal preferred by the petitioner insurance company against the order of the District Forum Sangrur.

2.         Briefly put, the facts relevant for the disposal of this revision petition are that the respondent Harvinder Kaur filed a consumer complaint in District Forum Sangrur alleging that her husband Sukhwinder Singh had obtained a life insurance policy from the petitioner OP for a sum of Rs.1,00,000/- appointing the respondent as the nominee.  The date of maturity of insurance policy was 24.08.20122.  The insured suffered an attack of breathlessness on 17.11.2007 which persisted for 2/3 days.  The insured, was, therefore admitted in Tagore Hospital, Jalandhar City on 20.11.2007.  He was discharged on 07.12.2007.  The insured, however, died on 08.12.2007.  The intimation of the death of the insured was given to the petitioner.  The petitioner, however, repudiated the claim on the ground that insured while obtaining the insurance policy concealed that he was already suffering from pulmonary hypertension.  This led to the filing of the consumer complaint.

3.         The petitioner OP in its response to the complaint admitted that Sukhwinder Singh had obtained life insurance policy for Rs.1.00 lacs and that he died on 08.12.2007.  The petitioner, however, justified repudiation of the claim on the ground that insurance policy was obtained by concealing the material fact that the insured was suffering from primary pulmonary hypertension.

4.         In the rejoinder respondent complainant took the stand that nothing was concealed at the time of obtaining of the insurance policy.  The insured Sukhwinder Singh was neither suffering from any disease prior to the filling up of the proposal form nor he knew about it. 

5.         The District Forum on consideration of the pleadings and evidence on record allowed the insurance claim and directed the petitioner to pay to the complainant a sum of Rs.1.00 lac with benefits alongwith interest of 9% p.a. from the date of repudiation  i.e. 14.07.2008 till realization and also to pay additional sum of Rs.3000/- as compensation.

6.         Being aggrieved of the order of the District Forum, the petitioner preferred an appeal on the plea that the District Forum has committed a grave error in ignoring the fact that insuredSukhwinder Singh was suffering from pulmonary hypertension at the time of filling of proposal form and that he concealed the aforesaid fact.  The above plea of the petitioner, however, did not find favour with the State Commission and State Commission dismissed the appeal vide the impugned order.

7.         Learned Shri Rakesh Malhotra, Advocate, counsel for the petitioner insurance company has contended that the impugned order of the foras below are perverse as both the forasbelow have failed to appreciate that the insurance policy was obtained by the insured by concealing the material fact that he was suffering from pulmonary hypertension.  In support of this contention, learned counsel for the petitioner has referred to the discharge card of the insured Sukhwinder Singh issued by Tagore Hospital on 21.06.2007 wherein against the history and findings it is recorded K/C/O Primary Pulmonary hypertension x 2 yrs on Rx and the diagnosis K/C/O Primary Pulmonary Hypertension c Mod.PAH C.  It is contended that though the State Commission has taken note of the fact that the insured Sukhwinder Singh was admitted and treated in Tagore Hospital from 20.11.2007 to 07.12.2012 yet it has ignored the earlier discharge certificate issued by Tagore Hospital which clearly prove that the insured has concealed information regarding his medical condition while filling the proposal form  Thus, it is contended that the impugned order is liable to be set aside.  In support of this contention, the petitioner has relied upon the judgment of the Supreme Court in the matter of Satwant KumarSandhu Vs. New India Assurance Company Limited (2009) 7 SCC 316.

8.         Counsel for the respondent on the contrary has argued in support of the impugned order.  It is contended that since the petitioner has taken the plea of concealment of material fact while filling the proposal form for obtaining insurance policy, the onus of proving the concealment was on the petitioner.  The petitioner, however, has failed to discharge the said onus by adducing evidence i.e. either by examination of the treating doctor or by producing the original record of the treatment.  It is argued that since the concealment has not been proved, orders of the fora below cannot be faulted.

 

9.         We have considered the rival contentions and perused the record. Undisputedly, the petitioner OP has repudiated the claim of the respondent on the ground that the insurance was obtained by the deceased Sukhwinder Singh by concealing the fact that he was suffering from primary pulmonary hypertension.  The onus of proving the above ground for repudiation of insurance claim lies heavily on the petitioner opportunity.   The petitioner in order to prove concealment of previous ailment on the part of the deceased Sukhwinder Singh is relying upon the photocopy of the discharge card allegedly issued by the Tagore Hospital Jallandhar.  If this discharge card is taken to be proved, then patient Sukhwinder Singh was admitted in the above noted hospital from 14.06.2007 to 21.06.2007 and at the time of admission, he gave the history of pulmonary hypertension for the last two years.  The core question, however, is whether the petitioner has proved the above noted discharge card and linked it with the insured Sukhwinder Singh?.


 

10.       On perusal of record, we find that the concerned doctor who allegedly treated the insured Sukhwinder Singh from 14.06.2007 to 21.06.2007 and recorded that the patient was admitted with the history of Pulmonary Hypertension for the last two years was not examined by the petitioner to prove the photocopy of the discharge card relied upon by the petitioner nor the affidavit of said doctor has been filed.  Even the original record of the Tagore Hospital has not been produced to prove the discharge card, which obviously, is a secondary evidence. Since the petitioner has failed to produce primary evidence to establish the ground for repudiation of claim, the foras below in our considered view were right in declining to rely upon the photocopy of the discharge card produced by the petitioner to establish that the petitioner while obtaining the insurance policy concealed the fact that he was suffering from Pulmonary Hypertension.

 

11.       In view of the discussion above, we find no reason to interfere with the concurrent findings of the foras below particularly when the counsel for the petitioner has failed to point out any jurisdictional error or material irregularity in the impugned orders.  The revision petition is, therefore, dismissed with no order as to costs.



         

………………………….



(AJIT BHARIHOKE, J)

( PRESIDING MEMBER)

…………………………



(SURESH CHANDRA)

MEMBER

Am/


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION     NEW DELHI 




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