Evidence By Way Of Affidavit During Trial Under Section 17 Of The Consumer Protection Act 19861 - Legal Draft

Precedent No. 51

EVIDENCE BY WAY OF AFFIDAVIT: DURING TRIAL UNDER SECTION 17 OF THE

CONSUMER PROTECTION ACT, 19861

IN THE HON'BLE COURT OF STATE CONSUMERDISPUTES REDRESSAL COMMISSION,

In

Complaint No of 20

Complainant:

Vs.

Respondent:

AFFIDAVIT of , W/o , aged about

years, presently residing in , do hereby solemnly affirm on oath as

under:—

1. That the deponent is the complainant in the complaint referred to

above.The deponent is well conversant with the facts and circumstances

of thecase and stands fully competent to swear to this affidavit.

1. That the deponent is the widow of the and has two minor and

dependent children by the name of and , aged

and respectively.

1. That the deponent's deceased husband had the following policies:—

S. No. Policy No. Insured Amount Table No. Date of

commencement of risk

T. ~ RsTTT ~

Rs.

Rs.

Rs.

CW1/2, Ex. es for table

True copies of the aforesaid policies are Ex. CW1/1, Ex. CW1/3, Ex.

CW1/4 respectively. The modular forms of polici

Nos and are Ex. CW1/5, Ex. CW1/6 respectively, for perusal of

detailed terms and conditions of the aforesaid policies.

That the deponent's husband was running a sole proprietorship firm in

the

name and style of M/s The deponent's husband was managing

all the affairs of the said firm by himself, with the help of employees.

That the deponent's husband was enjoying very good health in as much as

he never visited any doctor for any treatment for any ailment or disease

affecting the longevity of life.

That on , the deponent, alongwith her husband and children,

visited Hotel for having dinner. However, the deponent's husband

suddenly complained of vertigo and severe headache just as he

wasclimbing the stairs of the said hotel. Thereupon, the deponent, with

thehelp of the hotel staff, immediately rushed her husband to hospital.

That the deponent's husband breathed his last breath on , at

about A true copy of the death certificate of the

deponent's husband is Ex. CW/7.

1. That after the death of the deponent's husband, the deponent

timely presented the aforementioned claims to the respondent.

1. That vide order dated claims pertaining to the first three of

the

aforementioned policies were rejected by the Divisional Office of the

respondent on the pretext of concealment of facts on the part of the

deceased insured. The said order is Ex. CW1/8.

1. That policy no effective from ought not to have been

downrightly rejected by the respondent as the said policy was older than

2 years.

1. That in the letter written by the Divisional Office rejecting the

aforesaidclaims of the deponent, it has been mentioned that the deceased

insuredhad been suffering from high blood-pressure and diabetes for more

than10 years before the date of proposal. It further mentioned that

thedeceased insured was in constant touch with various doctors and

wasregularly taking medicines for the said diseases and that due to

thesediseases only the deceased insured was admitted to the

aforementioned

hospital on and died of the same. The said letter further

mentioned that the deceased insured had not expressed the facts relating

to the said diseases in the proposal form and gave false answers with an

intention to hide the correct condition of his health and therefore, as

per the terms and conditions of the policy, the respondent was not

liable to pay the claims under the policies in question. The respondents

even claimed to have adequate evidence in support of their contention.

1. That it is humbly submitted that the respondents turned deaf

ears to the deponent's genuine request to see the said proofs. It would

be appropriate to mention here that it was mandatory for the respondents

to support their repudiation of the policies with the said proofs in the

rejection letter itself. This Hon'ble Court may be pleased to appreciate

that by virtue of section 15 of the Insurance Act of 1938, it was not

sufficient for the respondents to shirk away their responsibility merely

by saying that they had adequate proofs to support the repudiation of

the policies in question. The deponent's original letter containing the

aforesaid request is Ex. CW1/9.

1. It is further submitted that the correct and legitimate forum

to provide evidences under section 45 of the Insurance Act, 1938, is the

party against whom the evidence is supposed to have been laid and not

doing so is clearly a violation of the said provision. The basis of any

contract is, inter alia, the terms upon which the parties agree to enter

into the contract and also that both the parties abide by those terms.

The contract of life insurance also falls within this ambit and stands

on the foundation of utmost good faith. The failure of the respondents

to support the repudiation of the policies in question with adequate

proof of the alleged suppression of facts and also the failure to supply

the said proofs to the deponent, clearly holds them liable not only for

breach of contract but also for breach of utmost good faith which is the

flesh and blood of any contract of insurance.

1. That the fact of the matter is that the deceased insured was

neither suffering from hypertension nor diabetes. Neither the deceased

insurer nor the deponent was aware of the presence of any such disease

in the deceased insured. As a natural corollary of this, there is no

question of the deceased insured receiving any kind of treatment for the

aforesaid diseases. Therefore, the allegation set forth by the

respondent is wholly and completely fictitious, having its most apparent

and conspicuous source in their greed, malice and dishonesty.

1. That it is worth mentioning that on the fateful day, the deceased

insuredwent to his office as usual and carried on his business in a

normal way.There was nothing abnormal about the deceased insured's

health till hewas rushed to the said hospital, leave alone his suffering

from theaforesaid diseases for more than ten years before filling the

proposalform. The said allegation is clearly a figment of the

respondents'overworking and wild imagination employed to abstain from

releasing themoney covered by the policies in question.

1. That the deponent and the deceased insured had shifted to in

1987 and since then Dr has been their family doctor. A certificate

from Dr , to the effect that the deceased insured was in perfect

health till the moment he complained of vertigo and severe headacheon

is Ex. CW1/10.

1. That as per the guidelines given in the Agent's manual, in view

of the amount and the maturity age covered by the policies in question,

the insurance company was bound to issue the policies after special

medical examination. Further, there is an endorsement of the L.I.C

doctor on each of the proposal forms, which goes a long way to show that

thorough medical examination of the deceased insured has been done and

the respondents' contention relating to the suppression of facts falls

flat on its face.

1. That the fact of the matter is that the respondents have

repudiated the deponents' claim mechanically and without applying their

minds to the situation. This kind of repudiation is clearly in violation

of the law of the land as pronounced by the Hon'ble Supreme Court of

India in Life Insurance Corporation of India v. Asha Goyal, AIR 2001 SC

2. In view of the abovementioned facts and circumstances, it is just

and

necessary that the order of repudiation dated be set aside and the

claims of the deponent under the aforementioned policies, alongwith

interest at the rate of from the date of repudiation, be allowed.

Further,

a sum of may be awarded in favour of the deponent and against the

respondent, towards the mental agony and harassment that the deponent

was forced to undergo due to the treatment meted out to her by the

respondent.

Sd./ Deponent.

Verification

Verified at on this the of 20 that

the contents of the above affidavit are true and correct to the best of

knowledge, belief and information of the deponent and nothing material

has been concealed therefrom.

Sd./ Deponent.

Solemnly affirmed and signed before me by the deponent, who is

personallyknown to me, on this the day of ,20

Sd./

Counsel for the deponent.

Note: Affidavit to be attested by the appropriate authority prescribed

under law. Prayer should not be given in affidavits to possible extent.