B.K. Taimni, Member—Petitioner was the opposite party before the District Forum, where the respondent/complainant had .filed a complaint alleging deficiency in service on the part of the petitioner .

2. Briefly stated the facts of the case are that the husband of the respondent/complainant had obtained an insurance policy for Rs. 5 lakh for which two quarterly premiums were paid and the next instalments was due on August 2002. However, the insured had died on 24.07.02 due to cardiac arrest. The respondent/complainant being the nominee, preferred a claim before the Insurance Company which was repudiated on the ground that the insured had suppressed material information regarding his true state of health, by giving a answer in the negative to the question, as to whether during the last five years, the insured was required to receive treatment of his ailment for a week and had consulted a medical practitioner, to which the answer was ‘No’. In response to the query about the general state of health, the answer was recorded as ‘No’. The additional ground for repudiation was that the insured had wrongly declared his annual income as Rs. 1,80,000/- whereas as per material available with the petitioner, his annual income was Rs.18,000/- only. It is in these circumstances, alleging deficiency in service on the part of the petitioner, the respondent/complainant filed a complaint before the District Forum, which was allowed only in part, i.e., by directing the petitioner to refund the deposited premium amount of Rs.12,150/- along with interest @9% p.a. from the date of deposit of premium till the date of realisation. A cost of Rs. 1,000/- was also imposed.

3. Aggrieved by this order, both the parties filed two separate appeals before the State Commission, wherein the appeal filed by the petitioner insurer was dismissed and the appeal filed by the respondent /complainant was allowed and the petitioner insurance company was directed to pay a sum of Rs.5 lakh along with interest @ 6% per annum from 13.12.02, i.e., the date of repudiation, within a period of 2 months. Aggrieved by this order, the petitioner had filed this revision petition before us.

4. We heard the Ld. Counsel for the parties at some length. In our view, the material document is the ‘proposal form’. When we go through this proposal form, it is to be noted that it carries only the ‘thumb-impression’, instead of the insured’s signature, meaning thereby, that the insured/deceased was an illiterate. There is no material filed on behalf of the petitioner by way of any affidavit of the ‘Agent’ of LIC or the person who made the entries on the proposal form that the information as reflected in the Proposal form was, as given out by the insured. Another point to be noted is that the petitioner has made allegation of mix-up of their agent with the insured. If that is so, then for fault of the agent of the insurer/petitioner, no adverse inference /liability could be fastened on the respondent.

5. Ld. Counsel for the petitioner relies upon query 11(b) of the proposal, to which the answer is given ‘No’, reads as follows:-

“Have you ever been admitted to any hospital or nursing home for general check-up, observation, treatment or operation?”

This entry has been made in ‘English’ and as already stated above the insured was an illiterate person, we also like to record that the income of the insured has been shown as Rs. 1,80,000/-.

As already observed earlier, that the proposal form carries the thumb impression on two places- firstly, it is against col. 16 which reads, “Whether the terms and conditions of the proposed plan has been explained to you by the agent.” The answer written is ‘Yes’ and then there is thumb impression. The word ‘Yes’ is not proven. In the next page under the heading ‘Declaration’, by the proposer it is yet again the thumb impression of the insured. At the cost of repetition, it is reiterated that the best evidence would have been that of the agent, who had f