ORDER P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 18.02.2017 passed by Learned District Forum in consumer complaint No. 52 of 2011 title Mr. Lalit Gupta v. The Manager Oriental Insurance Company Ltd. Brief facts of consumer complaint: 2. Shri Lalit filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is serving as Assistant Manager in Jay Pee Cement Pvt. Ltd. It is pleaded that insurance policy i.e. Happy Family Floater Policy issued by opposite party in favour of complainant through agent Shri Kuldeep Singh on dated 12.01.2010 covering medi-claim of complainant, wife of complainant namely Ritu Gupta and son of complainant namely Jatin. It is pleaded that premium was paid to the insurance company to the tune of Rs. 7180/-(Seven thousand one hundred eighty). It is pleaded that risk cover was upto Rs. 500000/-(Five lacs). It is further pleaded that wife of complainant Smt. Ritu Gupta suddenly suffered acute pain in her stomach and she was admitted in Navjeevan Nursing Home Solan H.P. and she was operated on dated 13.02.2010. It is further pleaded that complainant visited the office of opposite party and requested opposite party to indemnify the medical claim. It is pleaded that opposite party asked the complainant to submit original bill. It is further pleaded that complainant incurred medical expenses to the tune of Rs. 60000/- for medial treatment of his wife. It is pleaded that opposite party did not indemnify medical claim of the complainant and thereafter complainant had given legal notice to the opposite party. It is pleaded that opposite party committed deficiency in service. Complainant sought relief of payment of Rs. 60000/-(Sixty thousand) along with interest @ 18% per annum. In addition complainant also sought a relief of payment of Rs. 2500/- (Two thousand five hundred) towards expenses incurred by the complainant. In addition complainant sought relief of Rs. 20000/- (Twenty thousand) for harassment and mental agony. Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action to file consumer complaint and complaint is bad for non-joinder of necessary party i.e. M/s. Vipul Medcorp TPA Pvt. Ltd. Chandigarh. 20000/- (Twenty thousand) for harassment and mental agony. Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action to file consumer complaint and complaint is bad for non-joinder of necessary party i.e. M/s. Vipul Medcorp TPA Pvt. Ltd. Chandigarh. It is pleaded that intricate question of law and fact are involved in the present consumer complaint and consumer complaint could not be decided in a summary manner. It is further pleaded that claim was repudiated by opposite party strictly as per terms and conditions of Mediclaim policy. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. Learned District Forum allowed the complaint and directed opposite party to pay Rs. 60000/-(Sixty thousand) spent by complainant on treatment of his wife within 30 days from the date of receipt of copy of order failing which opposite party would pay interest @ 9% per annum from the date of filing of complaint i.e. 18.03.2011 till the amount is realized. Learned District Forum further ordered opposite party to pay punitive compensation of Rs. 5000/-(Five thousand) to complainant. Learned District Forum further ordered that opposite party would pay litigation costs to the tune of Rs. 5000/-(Five thousand) to complainant. Feeling aggrieved against order passed by Learned District Forum insurance company filed present appeal before State Commission. 5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 6. Following points arise for determination in present appeal. 1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Final order. Findings upon point No. 1 with reasons: 7. Complainant filed affidavit annexure-C1 placed on record. There is recital in affidavit that complainant is serving as Assistant Manager in Jay Pee Cement Pvt. Ltd. There is recital in affidavit that complainant purchased Happy Family Floater Policy from opposite party through its agent Sh. Kuldeep Singh on dated 12.01.2010. There is further recital in affidavit that premium was paid by complainant to opposite party to the tune of Rs. 7180/-(Seven thousand one hundred eighty). Kuldeep Singh on dated 12.01.2010. There is further recital in affidavit that premium was paid by complainant to opposite party to the tune of Rs. 7180/-(Seven thousand one hundred eighty). There is recital in affidavit that wife of complainant Smt. Ritu Gupta suddenly suffered acute pain in her stomach and she was admitted in Navjeevan Nursing Home Solan where she was operated for ovarian cyst and gall bladder stone on dated 13.02.2010. There is recital in affidavit that thereafter complainant asked the opposite party to indemnify the medical bills submitted by complainant. There is further recital in affidavit that deponent incurred medical expenses to the tune of Rs. 60000/-(Sixty thousand). There is recital in affidavit that despite several requests opposite party did not settle the mediclaim and repudiated the claim. State Commission has also perused the annexures-C1 to C12 filed by complainant placed on record. 8. Learned Advocate appearing on behalf of opposite party submitted before learned District Forum that affidavit i.e. annexure-R5 filed in support of version attested on 29.02.2012 by Notary Public Mandi H.P be treated as evidence of opposite party relating to controversial facts. 9. Submission of learned Advocate appearing on behalf of insurance company that as per terms and conditions of Happy Family Floater Policy as per clause 4.3 risk claim was to be covered after the expiry of one year from the purchase of policy with respect to polycystic ovarian diseases and on this ground appeal be allowed is decided accordingly. It is proved on record that insurance policy was purchased on 12.01.2010 and wife of complainant was operated on dated 13.02.2010. State Commission is of the opinion that in order to prove exclusion clause of insurance policy onus lies upon the insurance company to prove factum of exclusion clause in positive manner. In the present case insurance company did not place on record the terms and conditions of insurance policy. Hence adverse inference is drawn against the insurance company on the principle of natural justice and in the ends of justice for non filing of terms and conditions of insurance policy. 10. It is also proved on record that insurance company filed version before learned District Forum on dated 18.04.2012 and insurance company has relied upon affidavit dated 29.02.2012 attested in support of version only by Notary Public Mandi (H.P). 10. It is also proved on record that insurance company filed version before learned District Forum on dated 18.04.2012 and insurance company has relied upon affidavit dated 29.02.2012 attested in support of version only by Notary Public Mandi (H.P). Insurance company did not file any independent affidavit under section 13(4) of Consumer Protection Act 1986 relating to controversial facts. Learned District Forum ordered the opposite party to adduce evidence relating to controversial facts under section 13(4) of Consumer Protection Act 1986 on dated 21.09.2015. Thereafter consumer complaint was listed for evidence of opposite party on dated 15.03.2016, 19.04.2016, 19.05.2016, 27.07.2016 and 20.10.2016. Learned Advocate appearing on behalf of insurance company has stated before learned District Forum on dated 20.10.2016 that annexures R1 to annexures R5 and affidavit dated 29.02.2012 attested by Notary Public in support of version of opposite party be treated as evidence of opposite party relating to controversial facts. 11. It is held that affidavit attested on 29.02.2012 filed in support of version could not be treated as evidence of the opposite party under section 13(4) of Consumer Protection Act 1986 relating to controversial facts because affidavit in support of version and affidavit in support of controversial facts are entirely two different concept under Consumer Protection Act 1986. It is held that affidavit filed in support of version is only affidavit relating to pleadings of opposite party under Consumer Protection Act 1986. It is held that affidavit filed in support of version could be treated as evidence in support of pleading of opposite party only and could not be treated as evidence relating to controversial facts under section 13(4) of Consumer Protection Act 1986 of opposite party. 12. There is recital in affidavit annexure R-5 filed by opposite party that affidavit was filed in support of version only. There is no recital in affidavit annexure-R5 that affidavit was filed in support of controversial facts under section 13(4) of Consumer Protection Act 1986. Hence it is held that plea of the insurance company that risk was not covered under insurance policy is defeated on the concept of ipse dixit (An assertion made without proof). It is well settled law that onus lies upon the parties to prove the fact. It is held that insurance company failed to prove the fact that mediclaim of wife of complainant was not covered in the insurance policy. It is well settled law that onus lies upon the parties to prove the fact. It is held that insurance company failed to prove the fact that mediclaim of wife of complainant was not covered in the insurance policy. No reason assigned by insurance company as to why insurance company did not place on record terms and conditions of insurance policy in order to prove exclusion clause. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings and governed under Consumer Protection Act 1986 enacted by Parliament of India to protect the interest of consumer. Insurance company could not be allowed to take benefit of its own laxity. 13. It is proved on record that Happy Family Floater Policy Schedule annexure-C2 was issued by opposite party on 12.01.2010 at Bilaspur Himachal Pradesh. It is proved on record that policy was operative w.e.f. 13.01.2010 to 12.01.2011. It is proved on record that risk covered was of Shri Lalit Kumar (Self) Ritu Gupta (Spouse unemployed) and Jatin (Dependent child Male). It is proved on record that insurance company has claimed premium from complainant to the tune of Rs. 7180/-(Seven thousand one hundred eight). Insurance policy was issued by opposite party through its agent Shri Kuldeep Singh. Insurance company did not file affidavit of agent namely Kuldeep Singh in order to prove that exclusion clause was explained to insured. Hence adverse inference is drawn against insurance company for non filing of affidavit of its agent namely Shri Kuldeep Singh through whom the insurance policy was given to complainant. 14. It was held by Hon''ble Division bench of India in case reported in 2000(2) DB Apex Court 734 Modern Insulators Ltd. v. Oriental Insurance Company Ltd. that if exclusion clause was not explained to insured by insurance company then insurance company could not take benefit of exclusion clause. Also see 2007(III) CPJ 34 NC National Insurance Company Ltd. v. D.P. Jain . 15. Submission of learned Advocate appearing on behalf of insurance company that M/s. Vipul Med corp TPA Private limited Chandigarh is necessary party in present consumer complaint and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused Happy Family Floater Policy schedule annexure-C2 placed on record. As per annexure-C2 privity of contract was executed between Oriental Insurance Company Ltd. and complainant only. State Commission has carefully perused Happy Family Floater Policy schedule annexure-C2 placed on record. As per annexure-C2 privity of contract was executed between Oriental Insurance Company Ltd. and complainant only. It is held that M/s. Vipul Med Corp TPA private limited is not necessary party for adjudication of present consumer complaint. 16. Submission of learned Advocate appearing on behalf of insurance company that intricate question of law and facts are involved in the present consumer complaint and complainant be relegated to civil court is decided accordingly. It is held that no intricate question of law and facts are involved in present consumer complaint. 17. Submission of learned Advocate appearing on behalf of insurance company that no cause of action accrued to complainant is decided accordingly. It is held that after repudiation of claim by insurance company cause of action accrued to complainant to file consumer complaint under Consumer Protection Act 1986. 18. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that order passed by learned District Forum is strictly in accordance with law and is in accordance with proved facts. It is held that insurance company did not prove the fact of exclusion clause in the present consumer complaint. It is held that insurance company did not place on record terms and conditions of insurance policy in order to prove exclusion clause claimed by insurance company and it is held that insurance company did not adduce any evidence under section 13(4) of Consumer Protection Act 1986 relating to controversial facts and simply relied upon the affidavit filed in support of version attested on 29.02.2012 by Notary Public much prior to the time when case was listed by learned District Forum for adducing evidence qua controversial facts. It is held that it is not expedient in the ends of justice to interfere in the order passed by learned District Forum. In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 19. In view of findings upon point No. 1 above appeal is dismissed. Order of learned District Forum is affirmed. It is held that it is not expedient in the ends of justice to interfere in the order passed by learned District Forum. In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 19. In view of findings upon point No. 1 above appeal is dismissed. Order of learned District Forum is affirmed. It is held that plea of insurance company that mediclaim falls in exclusion clause of insurance company is defeated on the concept of ipse dixit (An assertion made without proof). Happy Family Floater Policy Schedule annexure-C2 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum along with certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.