ORDER (Arun Kumar Goel, J. (Retd.) President (Oral) - After having heard learned Counsel for the appellants, we are of the opinion that only question involved in this case is that whether brain tumor which the respondent had, was malignant (cancerous) or not. If the answer is in the affirmative, then this appeal has to be allowed, otherwise result is obvious. 2.Admittedly, the respondent had been issued insurance policy under Jeewan Asha Plan (without profits/With Accident Benefit) on 15.1.1998 by the appellants. Its Table and Term was 129.20. Sum assured was Rs. 1,00,000/- and half yearly premium payable was Rs. 3,001/-. Policy in question had been issued by the Palampur Branch of the appellants on 24.9.1998 which is Annexure OP.1. Admittedly, respondent was diagnosed as per Annexure C 10 as under: “Diagnosis RFP lobe, Oligodendroglioma (Brain tumor) grade II- Biopsy report” He had also undergone treatment at Mohan Dai Oswal Cancer Treatment & Research Foundation, Ludhiana, as per Annexure C 11. 3.In this background, according to the appellants, respondent was having malignant brain tumor which was cancerous and risk in case thereof was not covered in terms of the policy of insurance, Annexure OP-1. As such, according to its learned Counsel, District Forum below fell into error in passing the impugned order while allowing Complaint No. 199 of 2004 on 27.6.2006, directing the appellants to pay the policy benefit to the complainant as per the terms of the policy within 30 days from the receipt of the copy of the order, alongwith interest @ 6% per annum from the date of complaint till realization. Besides this amount, appellants were held jointly and severally liable to pay Rs. 2,000/- for causing mental pain, agony and inconvenience as well as litigation cost. 4.In this background and admitted facts, learned Counsel for the appellants submitted by referring to Annexure C-10 and C-11 and the terms of Annexure OP-1 coupled with Annexure OP-3, the opinion of its Divisional Medical Referee (DMR), that tumor was clearly cancerous, therefore, its risk was not covered under the terms of policy, Annexure OP-1, and this appeal deserves to be allowed on this ground alone. 5.So far, Annexure C-10 and C-11 are concerned, these are the documents on which reliance had been placed by the respondent in support of his claim set out in the complaint. Annexure OP-1 is again a document which both the parties admit. 5.So far, Annexure C-10 and C-11 are concerned, these are the documents on which reliance had been placed by the respondent in support of his claim set out in the complaint. Annexure OP-1 is again a document which both the parties admit. Photostat copy of C-10 is Annexure OP-2, on the basis whereof Dr. Lal Singh had opined in Annexure OP-3 that “He has a malignant Tumor (cancerous Tumor). This policy does not allow relief in malignant conditions”. This document and opinion is the mainstay of the appellants in this appeal. 6.On an overall examination of the complaint file as well as for the reasons to be recorded hereinafter, opinion of this Dr. Lal Singh, contained in Annexure OP-3 cannot be accepted on its face value. Admittedly, he had not examined and/or seen the respondent. Similarly the respondent was never called upon to appear before the said doctor and/or brought by the appellants for his medical examination before the Divisional Medical Referee. According to us, OP-3 is based on the Photostat copy of the discharge card, original whereof is Annexure C-10. A perusal of the discharge card shows that the doctor was not certain after the Biopsy, as is evident from the question marks he has put. Therefore, to say that the tumor being Grade II and/or the respondent was suffering from the above referred diseases by itself will not make the tumor malignant (cancerous) as has been observed by doctor Lal Singh, Divisional Medical Referee of the appellants. 7.Respondent, in our opinion, had got the policy issued as aforesaid, Annexure OP-1 to meet the situations, like the one in which he was placed. As such, the submission of the learned Counsel for the appellants that they have been successful in proving the tumor being malignant (cancerous) is hereby rejected. If the nature of the tumor was on the face of it as argued on behalf of the appellants, then there was no need of biopsy being done. However, the doctors went ahead with the same but were doubtful that the tumor was malignant (cancerous) as is evident from the observations under main heading ‘Investigations’ sub head, ‘Biopsy’ dated 15.11.2003 in Annexures C-10 (OP-2). Even against all the diseases under the heading Biopsy, for which he was stated to be suffering, doctor has put question marks, which could not be explained by the learned Counsel for the appellants. Even against all the diseases under the heading Biopsy, for which he was stated to be suffering, doctor has put question marks, which could not be explained by the learned Counsel for the appellants. And in case there was no doubt or if the doctor was certain about the respondent suffering from malignant tumor, set out as defence to the complaint, and also the main ground in this appeal, there was no question for the said doctor having put question marks, which we understand in medical science indicates doubt. Therefore, to say that tumor was malignant, would not be correct. 8.At the risk of repetition, we may observe that the safest test to ascertain the nature of tumor being malignant (cancerous) as opined by Dr. Lal Singh was, the biopsy report regarding which the examining doctor has expressed doubt. Therefore, we fail to understand that how he i.e. Dr. Lal Singh, D.M.R. of the appellants could have opined so. We are further constrained to observe that he has not said a word on the biopsy report and what was meant by sign of interrogations put up by the doctor therein after examination of the respondent. 9.In view of the above circumstances, Annexure OP-3 cannot be made basis for allowing this appeal. So far, other documents are concerned, those are admitted one on behalf of both the parties. 10.Another point urged was that the matter required thorough examination and could not have been decided in summary proceedings under the Consumer Protection Act, 1986, as elaborate expert opinion was needed. This plea we are noting simply to be rejected. For taking this view, we place reliance on a decision of the Hon’ble Supreme Court in the case of Dr. J.J. Merchant and others v. Shrinath Chaturvedi, AIR 2002 Supreme Court 2931. 11.No other point was urged. In view of the above discussion, there is no merit in this appeal, which is accordingly dismissed. No costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Learned Counsel for the appellant has undertaken no collect copy of this order from the Reader of this Court. Office is directed to send copy of this order by post to the respondent. Appeal dismissed. M.R.B. ———————