Heard learned counsel for both the parties.

2.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

FACTS

3.                   The unfolded story of the complainant is that    the complainant   had  purchased had purchased LIC  policy  for sum assured of Rs.15,00,00/-  commencing from 31.07.2010. It is alleged inter-alia that the complainant’s wife died on 06.12.2011 having suffered from cancer. Thereafter the claim was made before the Op who repudiated the same by observing that the policy holder had suppressed the material fact with regard to the pre-existing diseases  while filled up proposal form.  Challenging said ground of repudiation, the complaint was filed.

4.          The OP  filed written version stating  that  the complaint is not maintainable. Further, it is averred that  in discharge summary it  is already indicated that the policy holder was treated as cancer patient in 2009 in Hemalata Hospital  prior to submission of proposal form. But such disease of cancer has not disclosed in the proposal form. It is further  averred  by the OP that the policy holder has suppressed such  material fact while filling up the proposal form   for which  they have repudiated the claim U/S-45 of the Insurance Act,1938.

5.                       After hearing both the parties, learned District Forum    have passed the following order:-

                           Xxxx                  xxxx           xxxx

                     “As per  above discussion the complaint filed by the complainant is allowed  and he is entitled to get the death benefit of his deceased wife being her nominee. Hence, the Opp.parties are jointly and severally directed  to pay the full and final death claim of the policy holder to the complainant, the nominee and the husband of the deceased in connection with policy No.572914059 dated 04.06.2010 within 30 days from the date of receipt of this order,failing which the same shall carry interest  at the rate of 10 % per annum from the date of order till the date of payment.”

6.                     Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not considering the written version with proper perspective. According to him the document of Hemalata Cancer Institute dtd.25.11.2011 clearly shows that the policy holder was suffering from cancer in 2009 and as such received the treatment. Since, the proposal form does not contain about such disease  she was suffering, it amounts to suppression of material fact for which the OP has repudiated the claim U/S-45 of the Insurance Act,1938. Learned District Forum ought to have considered all these facts and law  involved in this case. Therefore, he submitted to set-aside the impugned order by allowing the appeal.

7.             Learned counsel for the respondent submitted that the policy holder was  first diagonised  suffering from cancer in the month of January,2011. She had no any pre-existing disease   by the time of proposal form filled up. The OP having onus to prove the pre-existing disease has not proved same. Therefore, learned District Forum  has rightly passed the impugned  order which should be confirmed.

8.               Considered the submission of respective counsels,  perused the DFR and impugned order.

9.                   It is admitted fact  that the policy holder had purchased the LIC policy from the OP. It is also admitted fact that the policy holder had died on 06.12.2011. However,  the OP submitted that  she has pre-existing disease of cancer.  The onus lies on the  insurer to prove the suppression of material fact by the policy holder. We relied on the decision of Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814,SCR Supl. (2) 571  and on subsequent decision of Hon’ble Apex Court where Their Lordships have consistently   held   that the onus lies on the  OP to prove the following pre-conditions  to attract Section 45 of  the Insurance Act,1938   while they call the policy in question. 

   a) the statement must be on a material matter or must suppress facts which it was material to disclose;

     b) the suppression must be fraudulently made by the policy-holder, and

    c)  the policy- holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

  With due regard to the aforesaid decision  now the OP in order to dischare its  onus have produced proposal form of policy holder It is admitted fact  that on 04.06.2011   she has filled up the proposal form against personal  history in the following manner:-

11. (i)              During the last 5 years did you consult a Medical Practitioner for any ailment requiring treatment for more than a week                  ……..             No

   (ii)   Have you remained absent from place

        Of wok on grounds of health during        …  No

       Last 5 years

  (iv)   Are you suffering from or have you

          ever suffered from ailments pertaining

          to Liver,Stomach,Heart, Lungs,Kidney,

          Brain or Nervous system ?      ….              No

   (v)             Are you suffering from or have you ever suffered from Diabetes, Tuberculosis High Blood Pressure, Cancer,Epllepsy,Hernia, Leprosy or any other disease .                                                       …..   No

  (viii)         Do you use or have ever used Alcoholic

                 Drinks, Nrcotics, any other drugs,

                Tobacco in any form ?                 ……. No

  ix)  What has been your usual state of health ?  Good

10.     It is also found from Ext.D, the medical certificate at para 4© which is as  follows:-

          Ext. D  4.(c)   How long had he been suffering from  this disease before  his death   -  2 years. OP also relied upon Ext.G which is copy of Discharge summary  of policy holder issued by Hemalata Hospital dtd.25.11.2011clearly which  shows that  the life assured was undergoing  for   cancer treatment from July-August,2009. But no such certificate of Hemalata Hospital  of July-August,2009 is filed. When discharge summary is filed, it should  be related to July-August,2009 but not   dtd.25.11.2011.                             

11.   OP  relied on the Ext. D & G, the documents  were  issued after  the death of the policy holder. Those documents do not disclose  basing on which information  same have  been recorded. There is no any connected  documents to justify such information. There is no source  disclosed by the OP as to how and where they got the information. Therefore such documents are hearsay and can not be relied on to prove plea of OP.  

12.      When the OP  failed to prove the pre-existing disease of the deceased, we are compelled to observe that the learned District Forum have  passed impugned order  which is legal and proper. We confirm same.

              Appeal being devoid of merit  stands dismissed. No cost.

                    Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as copy of order received from this Commission.  

                    DFR be sent back forthwith.