Judgment:
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
1. This appeal arises out of award/order dated 18/10/2006 passed in consumer complaint no.210/2006 Kiran Shivlal Kothari v/s. Bajaj Allianz General Insurance Co. Ltd. and another passed by District Consumer Forum, Solapur.
2. Complainant respondent no.1 Kiran Shivlal Kothari has preferred a mediclaim under Mediclaim policy and which stood repudiated by the appellant/ O.P.no.1-Insurance Co. on the ground of breach of utmost good faith, since ailment of diabetes was not disclosed. Forum below held that the expert opinion of Dr.Arvind Bamnikar relied upon for this purpose by the Insurance Co. could not be accepted in absence of relevant documents, which were not produced before it and holding accordingly, Forum below granted the claim. Feeling aggrieved thereby Insurance Co. preferred this appeal.
3. Heard Mr.S.R.Singh-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for the respondent/org.complainant. Respondent no.2/org.O.P.no.2 absent.
4. Perused the papers. Forum below was perhaps correct in not giving much evidenciary value to the opinion of Dr.Arvind Bamnikar in absence of the documents which were referred to and relied by him. The relevant documents referred are about the discharge card wherein history of diabetes was mentioned. In an affidavit filed before us in appeal, complainant disputed the fact about his diabetic condition and submitted that it was wrongly mentioned in the discharge card. Thus, there is a dispute as to the factual situation and which needs to be properly probed giving opportunity to both the parties under section 13 of Consumer Protection Act, 1986. Hence, this is a fit case for remand. We hold accordingly and pass following order:-
Order:
1. Appeal is allowed.
2. Impugned order/award dated 18/10/2006 is set aside.
3. Matter is remanded back to the Forum below for denovo trial.
4. Forum below shall give opportunity to both the sides to lead additional evidence, if any under section 13 of Consumer Protection Act, 1986 and then shall settle the dispute according to law.
5. Matter be expedited and preferably decided within 2 months from the date of appearance.
6. Both the parties shall appear before the Forum below on 13/7/2009.
7. Misc.application stands disposed of.