Court No. - 54
Case :- WRIT - C No. - 29271 of 2014 Petitioner :- National Insurance Co. Ltd. Thru Admn. Officer Respondent :- Smt. Archana Singh And Another Counsel for Petitioner :- S.K. Mehrotra Counsel for Respondent :- S.C.,Avinash Kumar Verma,Dev Barat Mukharjee,Santosh Kumar
Hon'ble Ajit Kumar,J.
1. Learned counsel for the petitioner states that the petitioner does not want to file rejoinder affidavit. Accordingly, this Court proceeds to hear and decide the matter on the basis of pleadings available on record.
2. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the contesting respondent.
3. By means of present petition, the petitioner who is insurance company has assailed the order of Permanent Lok Adalat dated 18.12.2013 whereby the compensation of Rs. 5,00,000/- each in respect of the two policies have been awarded on account of accidental death of the husband of the contesting respondent no. 1. The grounds for assailing the order is that there was a clear violation of the clause contained in insurance policy which required declaration regarding earlier existing policy if any and, therefore, the argument advanced is that since that clause was not filled in subsequent policy which had been taken and which had been annexed alongwith writ petition as annexure no. 1, according to the petitioner, the claimant would not be entitled to be paid compensation.
4. The second argument is that there was a condition prescribed for under the policy that in the case of death, necessary information shall be given to the insurance company within a month. Thus, it is urged that order of Rs. 5,00,000/- in respect of second policy is concerned , the claimant was definitely not entitled for compensation. It is sought to be urged that in the event of non compliance of necessary condition, the Permanent Lok Adalat could not have directed for payment of compensation and it is also alleged that the said point has not been happily dealt with by the Permanent Lok Adalat and explanation offered by the claimant was certainly not tenable in law.
5. Per contra, the argument advanced by learned counsel appearing for contesting respondent is that condition as provided for regarding one month notice is only directory in nature because the condition also gives passage to those cases where reasonable explanations can be offered. It is further argued that as far as non disclosure of previous policy is concerned that could be rendered as mere irregularity, there is no such bar that second policy of the same person cannot be obtained from the insurance company.
6. Having heard the learned counsel for the parties and having perused the record and having carefully examined the order passed by the Permanent Lok Adalat, I find that the Permanent Lok Adalat dealt with both issues. I find myself in full agreement with argument of learned counsel appearing for contesting respondent that condition regarding one month notice in the event of accident or death is merely directory in nature. Even otherwise when there is a case that insurance company has been paid due premium for insurance cover for such mere irregularity, in the considered opinion of the Court the compensation cannot be denied. Further I find that as far as non disclosure of the previous policy is concerned, it is mere irregularity since learned counsel for the insurance company could not point out towards any rule which may bar the issuance of the second policy to the same person, merely because there is non disclosure of the previous policy would not render second policy in effective nor, it cannot be treated as case of fraud or misrepresentation because the insurance company had the records and it could verify the same .
7. The Supreme Court in the case of Sri Krishan v. Kurukshetra University, Kurukshetra, AIR 1976 SCC 376 has clearly held that where one is in a position to verify the facts from the record available with it, the beneficiary cannot be said to have mislead or committed fraud. Vide paragraph 7 of the aforesaid judgment the Apex Court has held thus:
It appears from the averments made in the counter- affidavit that according to the procedure prevalent in the College the admission forms are forwarded by the Head of the Department in December preceding the year when the Examination is held. In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect.
8. Applying the above principle, I find in the present case there was no clause in the policy nor, any condition that if insured had already a policy, the second policy would automatically get rendered void. In such circumstances, therefore, I do not find any error in the judgment of Permanent Lok Adalat.
9. The writ petition lacks merit and is consigned to record.
10. The compensation paid to the petitioner already under the order of this Court, shall be adjusted while making payment in full compliance of the order passed by Permanent Lok Adalat.
Order Date :- 30.7.2019 Sanjeev