JUDGMENT P.S. Rana (R), President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 30.11.2017 passed by Learned District Forum in consumer complaint No.60/2017 titled Kamal Kishore Mahajan Versus The Oriental Insurance Company Ltd. Brief facts of consumer complaint: 2. Shri Kamal Kishore filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased PNB-Oriental Royal Mediclaim Policy No.263201/48/2013/3333 from opposite party on dated 13.03.2013 and mediclaim policy was further renewed from time to time till 12.03.2016. It is pleaded that complainant has regularly paid the premium to opposite party till March 2016. It is pleaded that wife of complainant namely Smt. Anila Mahajan was also insured in the mediclaim policy. It is pleaded that complainant sought reimbursement of mediclaim of his wife namely Smt. Anila on 21.01.2014 and submitted mediclaim bills amounting to Rs.658566.04/-(Six lac fifty eight thousand five hundred sixty six rupees and four paise). It is pleaded that wife of complainant died on 15.10.2015. It is pleaded that opposite party did not settle the claim despite several requests and committed deficiency in service. Complainant sought relief of payment of entire mediclaim bills alongwith interest @ 18% per annum. In addition complainant sought relief of payment of Rs.100000/- (One lac) for mental harassment. In addition complainant sought relief of payment of litigation costs to the tune of Rs.25000/-(Twenty five thousand). Prayer for acceptance of consumer complaint sought. 3. Per contra version filed on behalf of opposite party pleaded therein that services of Third Party Administrator (TPA) licensed under IRDA sought. It is pleaded that mediclaim submitted by complainant does not fall within purview of Insurance policy and falls within the exclusion clause because wife of complainant was suffering from preexisting disease i.e. Diabetes & Hypertension and complainant does not disclose pre-existing disease of his deceased wife to Insurance company. It is pleaded that Insurance company did not commit any deficiency in service. It is pleaded that mediclaim bills were repudiated strictly as per exclusion clause No.4.1 of Insurance policy. Prayer for dismissal of consumer complaint sought. 4. Complainant filed rejoinder and pleaded that opposite party has approved amount of Rs.19186/-(Nineteen thousand one hundred eighty six) in favour of complainant against claim amount of Rs.52549/-(Fifty two thousand five hundred forty nine). It is pleaded that mediclaim bills were repudiated strictly as per exclusion clause No.4.1 of Insurance policy. Prayer for dismissal of consumer complaint sought. 4. Complainant filed rejoinder and pleaded that opposite party has approved amount of Rs.19186/-(Nineteen thousand one hundred eighty six) in favour of complainant against claim amount of Rs.52549/-(Fifty two thousand five hundred forty nine). It is pleaded that as Insurance company has approved the claim of Rs.19186/-(Nineteen thousand one hundred eighty six) in part and Insurance company could not be allowed to approbate and reprobate at the same time. Learned District Forum dismissed the consumer complaint. Feeling aggrieved against order passed by Learned District Forum complainant 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 and whether onus is upon Insurance company to prove pre-disease of insured by way of affidavit of Medical Officer and whether non sending of final report of TPA appointed under Insurance Regulatory and Development Authority Regulation 2001 to insured by Insurance company amounts to deficiency in service on behalf of Insurance company and whether exclusion clause can be used against insured when terms and conditions of exclusion clause were not explained to insured? 2. Final order. Findings upon point No.1 with reasons: 7. Complainant filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent purchased PNB Oriental Royal Mediclaim Policy No.263201/48/2013/3333 on dated 13.03.2013 which was renewed from time to time till 12.03.2016. There is recital in affidavit that mediclaim bills were submitted to Insurance company but Insurance company did not settle the mediclaim bills and repudiated the claim. State Commission has carefully perused all the annexures filed by complainant. 8. Opposite party filed affidavit of Shri Hari Ram Divisional Manager Oriental Insurance Company Ltd. There is recital in affidavit that deponent is serving as Divisional Manager in Oriental Insurance Company Ltd. There is recital in affidavit that Insurance company obtained services of TPA appointed under IRDA Regulation 2001. There is recital in affidavit that complainant did not approach learned District Forum with clean hands and suppressed the material facts. There is recital in affidavit that complainant did not approach learned District Forum with clean hands and suppressed the material facts. There is recital in affidavit that wife of complainant was suffering from pre-ailment disease i.e. Diabetes and hypertension and falls within the exclusion clause No.4.1 of Insurance policy. There is recital in affidavit that Insurance company did not commit any deficiency in service. 9. Submission of learned Advocate appearing on behalf of complainant that report of TPA was not sent to insured by Insurance company for filing representation and terms and conditions of exclusion clause of Insurance policy were not explained to insured by Insurance company and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant has obtained PNB-Oriental Royal Mediclaim Policy for PNB account holder from opposite party on dated 13.03.2013. It is also proved on record that premium was paid and policy was renewed from time to time. It is proved on record that mediclaim bills of Smt. Anila Mahajan who was wife of complainant was submitted before opposite party from time to time. It is proved on record that total bills submitted are to the tune of Rs.658566.04/-/-(Six lac fifty eight thousand five hundred sixty six rupees and four paise). It is also proved on record that wife of complainant Smt. Anila Mahajan was admitted in Shrinath Kidney Centre 4th Floor Anuj Tower Kapurthala Chowk Jalandhar city on 10.10.2015 and died due to cardio respiratory arrest on 15.10.2015 and body was handed over to the relatives as per certificate given by Shrinath Kidney Centre. Even as per death certificate annexure-C28 placed on record Smt Anila Mahajan died on dated 15.10.2015. As per latest renewed Insurance policy placed on record Insurance policy was operative w.e.f. 13.03.2015 to 12.03.2016 and particulars of persons covered have been mentioned as Kamal Kishore (self) and Smt. Anila Mahajan (spouse) and in coloumn of Insurance policy it has been specifically mentioned that there was no pre-existing ailment and value of sum insured has been mentioned as Rs.5.00 lac only. As per Insurance policy annexure-R2 Insurance company has received premium to the tune of Rs.6960/-(Six thousand nine hundred sixty) from insured. As per Insurance policy Insurance company is under legal obligation to pay hospitalization expenses for medical/surgical treatment at any Nursing Home/Hospital in India. 10. As per Insurance policy annexure-R2 Insurance company has received premium to the tune of Rs.6960/-(Six thousand nine hundred sixty) from insured. As per Insurance policy Insurance company is under legal obligation to pay hospitalization expenses for medical/surgical treatment at any Nursing Home/Hospital in India. 10. Insurance company has repudiated the mediclaim on the ground of pre-existing disease and on the ground of exclusion clause No.4.1 of Insurance policy. As per version filed opposite party sought report of TPA having licensed under IRDA Regulation 2001. Insurance company did not file affidavit of TPA in order to prove the contents of TPA report. Even Insurance company did not place on record TPA report. Even Insurance company did not file affidavit of Medical Officer in order to prove that deceased Smt. Anila Mahajan was suffering from pre-existing disease. Hence adverse inference is drawn against Insurance company for non-filing affidavit of Medical Officer relating to pre-disease of insured Anila Mahajan. Adverse inference is also drawn against Insurance company for non filing of report of TPA appointed under IRDA Regulation 2001. No reasons assigned as to why Insurance company has withheld report of TPA from learned District Forum and State Commission till date. Hence adverse inference is drawn against the Insurance company because Insurance company committed violation of principles of natural justice by way of not sending report of TPA to insured. See titled Khatau Haji Ibrahim Rumi & Anr. Versus New India Assurance Company and other, 2018 2 CLT 516 NC. 11. There is no evidence that terms and conditions of exclusion clause of Insurance policy were explained to insured. It is well settled law that when terms and conditions and exclusion clause were not explained to insured then Insurance company is not legally entitled for benefit of exclusion clause mentioned in Insurance policy. Insurance company did not file affidavit of person who has personally explained exclusion clause of Insurance policy to insured. Even there is no recital in the affidavit filed by Hari Ram Divisional Manager of Insurance company that exclusion clause of Insurance policy was explained to insured personally. Even Insurance company did not disclose name of official who had explained exclusion clause to insured in version or evidence filed by way of affidavit. Even there is no recital in the affidavit filed by Hari Ram Divisional Manager of Insurance company that exclusion clause of Insurance policy was explained to insured personally. Even Insurance company did not disclose name of official who had explained exclusion clause to insured in version or evidence filed by way of affidavit. See Modern Insulators Ltd. Versus Oriental Insurance Company Ltd. , (2000) 2 SCC 734 See National Insurance Company Ltd. Versus D.P. Jain , (2007) 3 CPJ 34 NC . 12. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for compensation to the tune of Rs.100000/-(One lac) is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment. Age of complainant is above 65 years and complainant is senior citizen of India. It is held that Insurance company has caused mental agony and harassment to senior citizen of India namely Sh. Kamal Kishore Mahajan. 13. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.25000/-(Twenty five thousand) is decided accordingly. Complainant did not file Advocate fee certificate on record. It is proved on record that complainant has engaged Advocate before learned District Forum and has paid requisite Advocate fee and litigation costs. It is held that complainant is legally entitled for reasonable litigation costs. 14. Submission of learned Advocate appearing on behalf of Insurance company that as per report of TPA claim of complainant was repudiated and Insurance company did not commit any deficiency in service is decided accordingly. Insurance company did not place on record report of TPA. No reason assigned by Insurance company as to why Insurance company did not place on record TPA report and as to why Insurance company has withheld the TPA report from the learned District Forum and State Commission. State Commission has drawn adverse inference against Insurance company for withholding report of TPA. There is no evidence on record that Insurance company has sent TPA report to complainant by way of registered letter. No opportunity given by Insurance company to complainant to file representation upon TPA report. Even Insurance company did not file affidavit of person on record who has submitted TPA report. See titled Khatau Haji Ibrahim Rumi Versus New India Assurance Company and others, 2018 2 CLT 516 NC. 15. No opportunity given by Insurance company to complainant to file representation upon TPA report. Even Insurance company did not file affidavit of person on record who has submitted TPA report. See titled Khatau Haji Ibrahim Rumi Versus New India Assurance Company and others, 2018 2 CLT 516 NC. 15. Submission of learned Advocate appearing on behalf of Insurance company that wife of complainant was suffering from diabetes and hypertension and insured has concealed prior disease from Insurance company and insured is not legally entitled for any mediclaim is decided accordingly. As per medical certificate complainant has died due to cardio respiratory arrest. There is no mention in medical certificate that disease has died due to diabetes or hypertension. In the absence of recital in medical certificate that deceased has died due to diabetes or hypertension State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to give benefit of exclusion clause No.4.1 of Insurance policy to Insurance company. 16. Even Insurance company did not file affidavit of Medical Officer in order to prove contents of controversial medical document. As per section 13(4)(ii) of Consumer Protection Act 1986 documentary evidence can be given under Consumer Protection Act 1986 which is producible as evidence. It is well settled law that contents of controversial document are producible as evidence under Consumer Protection Act 1986 by way of primary evidence or by way of secondary evidence. 17. As per law primary evidence means original document produced before District Forum or State Commission. As per law secondary evidence means certified copy of original document produced before District Forum or State Commission with certificate that contents of document have been compared with original. Insurance company did not prove controversial medical certificate by way of primary evidence or by way of secondary evidence. It is well settled law that contents of controversial document can be proved by way of affidavit of author of document or by way of affidavit of attesting witness as per section 13(4)(ii) of Consumer Protection Act 1986. It is well settled law that proceeding under Consumer Protection Act 1986 are quasi judicial proceedings. See titled Birla Sun Life Insurance Co. Ltd. & others Versus Gudela Siva, 2019 1 CLT 90NC. See titled Shaminder Kumar Chaudhary Versus Sukhdev Chand and others, 2019 1 HimLR 294. It is well settled law that proceeding under Consumer Protection Act 1986 are quasi judicial proceedings. See titled Birla Sun Life Insurance Co. Ltd. & others Versus Gudela Siva, 2019 1 CLT 90NC. See titled Shaminder Kumar Chaudhary Versus Sukhdev Chand and others, 2019 1 HimLR 294. See Madras High Court titled H.C. Manager Indian Bank and others Versus District Consumer Dispute Redressal Forum, 1996 2 CPC 524. See Calcutta High Court titled M/s. Keso Ram Industries Ltd. Versus Allahabad Bank , (2018) 2 CPJ 89. 18. Submission of learned Advocate appearing on behalf of Insurance company that discharge summary annexure-C32 has been filed by complainant himself and there is recital in annexure-C32 that Smt. Anila Mahajan wife of complainant has previous history of diabetes for 16/17 years and was also having passed history of hypertension for five/six years and on this ground appeal filed by complainant be dismissed is decided accordingly. Document annexureC32 discharge summary has not been signed by complainant and complainant has not admitted the contents of annexureC32 placed on record relating to previous history of ailment of his wife qua diabetes and hypertension. Document annexureC32 has been signed by Medical Officer namely Dr. Nidhi and Dr. Ajay Marwaha. Insurance company did not file affidavit of Dr. Nidhi and Dr. Ajay Marwaha in order to prove that deceased insured was suffering from history of diabetes and hypertension. 19. As per Insurance policy annexure-R2 placed on record age of insured Smt. Anila Mahajan was 58 (Fifty eight) years at the time of issuance of Insurance policy. As per instructions issued by IRDA medical examination of insured is must if age of insured at the time of issuance of Insurance policy exceed 45 (Forty five) years. It is well settled law that if medical examination of insured whose age exceed 45 (Forty five) years was not conducted by Insurance company at the time of issuance of Insurance policy then Insurance company could not evade liability. See U.T Chandigarh titled Manish Goyal Versus Max Bupa Health Insurance Co. Ltd. & others, 2018 2 CLT 205. See titled United India Insurance Company Ltd. & other Versus S.K. Gandhi, 2015 2 CLT 71 NC. See NC titled Life Insurance Corporation of India Versus Jyotsana Rawal , (2018) 3 CPJ 471. 20. See U.T Chandigarh titled Manish Goyal Versus Max Bupa Health Insurance Co. Ltd. & others, 2018 2 CLT 205. See titled United India Insurance Company Ltd. & other Versus S.K. Gandhi, 2015 2 CLT 71 NC. See NC titled Life Insurance Corporation of India Versus Jyotsana Rawal , (2018) 3 CPJ 471. 20. Even as per law documents are filed by parties in proceedings under Consumer Protection Act 1986 for two purposes (1) Some documents are filed by complainant at the time of filing consumer complaint for sue purpose only signed by opposite party or third person. (2) Some documents are filed by complainant for reliance purpose only. It is held that documents filed by complainant under Consumer Protection Act 1986 for sue purpose only signed by adverse party or third party could not be used personally against complainant under Consumer Protection Act 1986 unless complainant admit contents of controversial document in written manner. Point No.1 is decided accordingly. Point No.2: Final Order 21. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum is set aside. It is ordered that Insurance company shall pay mediclaim to complainant to the tune of Rs.500000/-(Five lac) alongwith interest @ 9% per annum from the date of institution of complaint till realization. 22. It is further ordered that in addition Insurance company shall pay compensation to complainant for mental agony and harassment to the tune of Rs.20000/-(Twenty thousand). It is further ordered that in addition Insurance company shall pay litigation costs to complainant to the tune of Rs.10000/-(Ten thousand). Entire process of payment shall be completed by Insurance company with one month after the receipt of certified copy of order of State Commission. Last Insurance policy annexure-R2 dated 13.03.2016 issued by opposite party relating to PNB-Oriental Royal Mediclaim alongwith risk detail shall form part and parcel of order. File of learned District Forum alongwith 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.