Judgment:
Oral Order:-
Per Mr. S.R. Khanzode, Honble Presiding Judicial Member:
This appeal arises out of order/award dated 27/06/2008 passed in consumer complaint no.35/2008, Mr.Vir Bhan Sharma v/s. Mr.Vir Bhan Sharma by (Additional)District Consumer Forum, Thane (Forum below in short). According to respondent/org.complainant, he has preferred this claim as a Nominee under the policy taken for his wife, who unfortunately died on 17/05/2006 due to Jaundice. The claim was repudiated by the insurance company vide letter dated 30/03/2007 and hence, this consumer complaint was filed. Forum below decreed the claim and feeling aggrieved thereby, insurance company preferred this appeal.
We heard Adv. Shri A.S. Vidyarthi for the appellant and respondent in person. Perused the record.
Insurance claim was repudiated on the ground of non-disclosure of the ailment. Whether repudiation is proper or not is the question before the Forum below. Appellant/Insurance Company had filed its written statement and was allowed to be placed on record subject to cost but since the costs were not paid, Forum below refused to take said written statement into consideration. Such course adopted by the Forum below was improper in absence of adopting recourse to strike off the pleadings of the opposite party for non-payment of costs. Important legal issues based upon the facts covering the repudiation are involved. Further, we find as to whether one of the legal heirs of the deceased/Savita Sharma alone could bring this action is an another question to be addressed and answered in light of Section 2(a) of Consumer Protection Act, 1986. This question needs to be examined properly. We find that it is a fit case for remand, of course, subject to costs. We hold accordingly and pass the following order:-
Order:
1. Appeal is allowed.
2. Impugned order/award dated 27/06/2008 is set aside subject to payment of cost of Rs.5,000/- to be paid by the appellant to the respondent within 30 days from the date of the order and failing which this appeal shall stand automatically dismissed without making any further reference to us.
3. If the condition precedent stipulated above is satisfied then the matter be remanded back to the Forum below with a direction to give opportunity to both the sides to present their proper pleadings i.e. written statement (subject to payment of cost already saddled by the Forum below) and rejoinder, if any. Both the parties shall also be permitted to lead their additional evidence under Section 13 of Consumer Protection Act, 1986 and then the Forum below shall settle the dispute in accordance with the law. Both the parties shall appear, in the eventuality of remanding the matter to the Forum below, supra, on 17/08/2009 (before Forum below).
4. The matter be expedited and shall be dispose of within three months from 17/08/2009
5. Misc.Application No.1596/2008 for Stay stands disposed of as infructuous.
6. Copies of the order herein be furnished to the parties.