ORDER: Justice Arun Kumar Goel (Retd.) President. Inderjeet Singh, late son of the respondents had obtained Insurance policy from the appellant on 28.3.2001 for a sum of Rs.5, 00,000/-. He paid premium in the year 2001-02 amounting to Rs.35, 651/- on the said date. This, policy was for a period of 20 years commencing from the date of insurance. According to the respondents, he was subjected to irigorous medical examination by the doctor of the appellant who declared him medically fit for being insured. All of a sudden on 17.8.2001, he developed some complications and was thus admitted to Indira Gandhi Medical College & Hospital, Shimla, hereinafter to be referred to as I.G.M.C. He was diagnosed in the Hospital to be having seizures. He remained under treatment upto 22.8.2001 and passed away on the same date. 2. In this background respondents lodged the claim with the appellant for payment of the amount in question, it was repudiated on 30.7.2002. They again prayed for reviewing the decision but on 8.1.2003, repudiation was reaffirmed by the appellant. This resulted in filing of the complaint before the Forum below. 3. Vide order dated 31.3.2004 in Complaint No. 157/2003, after hearing the parties, appellant has been directed to indemnify the respondents in the sum of Rs 5,00,000/- with interest @ 12% per annum with effect from the date of filing of the complaint i.e. 24.4.2003 till the date of actual payment. In addition to this, appellant has also been held liable for payment of litigation cost quantified at Rs.3500/-. It is against this order that the present appeal has been filed by the appellant. 4. Another fact that needs to be noted here is that according to the appellant contract of insurance is based on utmost good faith and bonafide. Doctrine of uberrima fides was also invoked in the present case by the learned Counsel for the appellant for setting aside the impugned order, as, according to him, when policy in question was obtained deceased had not only willfully but also fraudulently withheld his suffering from seizures, as according to her if these facts were disclosed when proposal form was filled-in, his client would have got further medical examination of the deceased and would have taken other steps if necessary before entering into contract of insurance with the deceased. This by itself is sufficient ground for setting aside the impugned order. This by itself is sufficient ground for setting aside the impugned order. In support of these pleas, reliance was placed by her on the documents on file of the Forum below, particularly Annexure R.1, the proposal form, Annexure R 3, Form No. 3816 purported to have been signed by the Registrar, Department of Medicines, I.G.M.C. Shimla, whose qualification is shown as M.D. Medicine in the said Department. Reliance was also placed by the learned Counsel on Annexure R-4, a letter issued by the Divisional Office of the appellant-Company to its Manager (NB), Shimla. All these pleas have been controverted by Shri Verma, learned Counsel for the appellant. According to him, present appeal is wholly frivolous aimed at prolonging the agony of his clients who unfortunately lost their young son. Per him, insurance was not obtained for getting money from the appellant but the deceased in his wisdom might have thought to get himself insured for future social security. He challenged Annexure R.3 i.e. the Forum No. 3816 and Annexure R 4, a letter dated 27.5.2002 from the appellant to its Manager (NB). He urged that it is a fit case for dismissal of appeal with exemplary costs, as the present appeal is nothing but an abuse of the process of law and of the Commission. Thus, he urged that the appeal may be dismissed. 5. We will take up Annexure R.3, Forum No. 3816. Its perusal makes an interesting reading. Patient was admitted on 18.8.2001. Nature of his complaint was abnormal movements of the face for one day. In Col.5 (a) it is mentioned-abnormal movements of face since morning- diagnosed case of multiple sclerosis-duration? (Emphasis supplied). In Col. No.6 diagnosis arrived at the Hospital was "multiple sclerosis with seizures". He died on 22.8.2001. History of illness as per records (Case Summary) is given as under: - "diagnosed case of multiple sclerosis abnormal movements of face- since morning. During admission patient became unconscious and had upper G.I. Bleed which was followed by death of 22/8/01 at 3.25 A.M." So far this Forum Annexure R.3 is concerned, it nowhere states that who was the doctor to whom history was reported and by whom it was recorded. During admission patient became unconscious and had upper G.I. Bleed which was followed by death of 22/8/01 at 3.25 A.M." So far this Forum Annexure R.3 is concerned, it nowhere states that who was the doctor to whom history was reported and by whom it was recorded. There is also Col.5(e) which requires to state regarding doctor to whom the history was reported who has recorded the same, still with the Hospital and if not what is the present address, its reply is nil. Who was the doctor on the date to whom history was reported, there is no mention The. date when first observed by the patient, answer is again "not known" Col. 7 (e) also requires to state by whom history was noted and recorded and the doctor is not with the Hospital at present, his present address is to be given. 6. In this background, no benefit can be derived by the appellant from Annexure R.3. Doctor, who has issued Annexure R.3 does not claim himself to be the doctor who either treated the deceased and/or to whom history was narrated by him (the deceased). 7. Now coming to the letter dated 27.5.2002, Annexure R.4. For ready reference, it is reproduced herein below:- "Ref No.DO/Claims Date 27.5.2002. The Manager (NB) LIC of India, Divisional Office, Shimla. Dear Sir, Reg: DMR opinion under Policy NO. 150993224 Fig. Lt Sh. Inderjit Singh (D). The above said Life Assured died within a period of 5 months and 29 days from DOC. As per the form No. 3816 the Life Assured was admitted in IGMC Hospital Shimla on 18.8.01. He was diagnosed case of multiple of sclerosis with seizures and later on the LA died due to said disease on 22.8.01. We hereby enclose the form No. 3816 and you are requested to seek the DMRs opinion as to whether the said disease develop instantly of over a longer period of time. Yours faithfully, End: Form No. 3816. . Sd/- Manager (Claims)" On its reverse, opinion; of the D.M.R. is also there. We can safely assume that the purpose of seeking opinion of the D.M.R. was to place on record expert opinion. Form No. 3816 was enclosed alongwith Annexure R.4. We have already found that the information given in the said Form i.e. Annexure R.3 does not in any manner improve the case of the appellant. We can safely assume that the purpose of seeking opinion of the D.M.R. was to place on record expert opinion. Form No. 3816 was enclosed alongwith Annexure R.4. We have already found that the information given in the said Form i.e. Annexure R.3 does not in any manner improve the case of the appellant. Who is the DMR, what are his qualifications, whether he is a subject Specialist on which information was sought, there is nothing on the record. It is not understood that as to on what basis in his so-called opinion, the DMR, has opined".......he was a known (diagnosed) case of multiple sclerosis". Thus it is clear that he is also not sure when he gave his final opinion because he has concluded ".......He most probably died due to the multiple sclerosis (Terminal event)." 8. In the context of Annexure R.3 and Annexure R.4, we may further i observe that in Annexure R.3, there is no mention that the deceased was a known J (diagnosed) case of multiple sclerosis. From where D.M.R. has given this i information, could not be explained by the learned Counsel for the appellant. Similarly, his opinion is not certain and prima facie appears to be based on hypothesis. It is by now well settled in law that opinion of an expert if it is to be read in evidence, has to be based on sound footing/reasoning. Since D.M.R. had not examined the patient and he appears to have opined on the reverse of Annexure R.4 (supra) on the basis of Annexure R.3 which was enclosed with the latter, therefore, it cannot be said to be the primary evidence. Primary evidence in this case would have been of the doctor who had attended upon the deceased after he was admitted on 18.8.2001 in the Hospital. Suffice it to say in this behalf that it is not the case of the appellant that the said doctor has either refused to give his opinion and/or after exercise of due diligence was not tractable and above all that his opinion/evidence could not be obtained without undue delay and/or expense. 9. Suffice it to say in this behalf that it is not the case of the appellant that the said doctor has either refused to give his opinion and/or after exercise of due diligence was not tractable and above all that his opinion/evidence could not be obtained without undue delay and/or expense. 9. We may further point out that in order to succeed on the plea of suppression of true and material facts regarding the deceased suffering from the above-mentioned ailment, by not disclosed the true state of his health in the proposal form and/or the policy having been obtained by fraud despite knowing the; fact, it was incumbent upon the appellant to prove all these facts supported by j cogent and reliable evidence. We may further observe in this behalf that mere non disclosure is one thing and fraudulent withholding of a material fact is totally another. It hardly needs to be clarified that on fraud being established, the contract has to fall. In the circumstances of this case, we are of the view that appellant has miserably failed to prove either non disclosure and/or suppression of true facts regarding his true state of health by the deceased much less his having practiced any fraud. In these circumstances, case of the appellant is not at all advanced by 1 either Annexure R.3 and 4. Nothing prevented the appellant to have placed on] record affidavit (s) of the doctor concerned. For taking this view, reliance is being! placed on a judgment of the National Commission in Revision Petition No. 2067/2001, dated 23.9.2004 in case titled as Life Insurance Corporation of India Versus Smt. Joginder Kaur & Ors. This case not only on law, but even on facts is nearer to the facts of the present case before us. 10. To be fair to Mrs. Sharma learned Counsel for the appellant, we may notice that she also urged that the interest allowed by the District Forum below at 12% per annum from the date of filing the complaint i.e. 24.4.2003 is not only on higher side but is also not in consonance with the decisions of the National Commission. Shri Verma urged that rate of interest allowed is within brackets and in the circumstances of this case calls for no interference. Shri Verma urged that rate of interest allowed is within brackets and in the circumstances of this case calls for no interference. After having examined the legal position of this aspect, we feel that interest needs to be reduced from 12% to 9% per annum on the sum of Rs.5, 00,000/- from the date of filing of the complaint i.e. 24.4.2003 till the date of deposit/payment whichever is earlier though this prayer was vehemently contested by Shri Verma on behalf of the respondent. Ordered accordingly. 11. No other point is urged. 12. In view of the aforesaid discussion, while partly allowing this appeal, order of the District Forum, Shimla in Complaint No. 157/2003 dated 31.3.2004 is modified to the extent that on the sum of Rs.5, 00,000/- as allowed by the Forum, appellant is held liable for payment of interest @ 9% per annum from 24.4.2003, (besides cost of Rs.3500/- as allowed in the impugned order), till the date of deposit/payment of this amount, whichever is earlier. Subject to this modification, parties are left to bear their own costs. All interim orders passed from time to time in this appeal stand vacated forthwith. Office is directed to make copy of this order available to the parties free of cost as per rules.