Intentional absence and lack of sufficient cause for re-admission of appeal can lead to dismissal of the application, especially if it perpetuates injustice to the non-applicant.

ORDER

Justice G.D. Sharma, President - This is an application made by M.A. Baba, advocate, for re-admission of the appeal which was dismissed for non-prosecution on 20.6.2008. It was found that on that date no body had appeared for the appellant for nine consecutive hearings.

2. Baba in support of his contentions for re-admission of the appeal has submitted that his absence was not intentional but he had met with an accident and it was not possible for him to appear in the Commission. That on 14.6.2008 he had gone to the doctor for consultation to get treatment for his eyes. He had gone to Amritsar to consult Dr. Daljit Singh Eye Specialist, who had advised him to have checkup from Indore. In support of his contention he has placed on record Annexure A, which is a prescription issued by Dr. Daljit Singh Eye Hospital but it is dated 16.1.2008. This certificate does not advance the case of the learned Counsel for his absence on 20.6.2008. His next contention is that he has applied for re-admission of the appeal within 30 days and it has to be re-admitted.

3. Shalla, learned Counsel for the non-applicant-respondent, has vehemently opposed the re-admission of the appeal that a meritless appeal has been filed in order to protract the proceedings so that a genuine consumer is deprived to reap the fruit of the long drawn litigation. He has referred to the merits of the case and stated that the learned Forum has elaborately dealt with all the aspects of the alleged fraud. His first contention is that the alleged fraud regarding misrepresentation of age should have been agitated under Section 45 of the Insurance Act from the date of filing the proposal form which has not been done in the present case. That the insured in the instance case had already died about six years ago when the question of his alleged under-age was agitated. That it is settled proposition of law that a policy which is alleged to have been obtained by fraud can only be set aside in case the insurer proves the factum of fraud. The insurer has done nothing in this case. On the other hand Baba has cited the case of Shabnam Devi v. LIC , National Commission, New Delhi Legal Digest April 2008. as well as the case of Shanta Bhai @ Basanta Devi, III (2004) CPJ 627 (DB):I (2004) ACC 153 (DB). of Allahbad High Court, which deal with the case of fraud in obtaining insurance policy. The law cited in the above stated cases has no application to the facts of the present cases as neither an objection of fraud or misrepresentation was raised by the applicant-appellant within two years nor this fact was proved by leading any evidence. Even on merit of the case Counsel for the applicant cannot succeed.

4. Taking stock of the whole matrix of the case we find that the continued absence of the applicant-appellant from appearing in the appeal was intentional and no sufficient cause has been made out to re-admit meritless appeal on its original number as that would further perpetuate injustice to the non-applicant. In this view of the matter, we dismiss the application and the same be consigned to records. Interim direction, if any issued, shall stand withdrawn, with the result that the order of the Forum remains intact. A copy of this order be sent to the Forum for information.