Heard learned counsel for  both the sides.

2.            This complaint  is  filed  U/S-17  of erstwhile  Consumer Protection Act,1986(herein-after called the Act) claiming sum assured, compensation and cost.

3.                   The unfolded story    of the complainant,   is that the complainant’s son   had purchased the insurance policy for sum assured of Rs.52,00,000/- from the OP for a period of 40 years commencing from 31.12.2015. It is also the case of the complainant, that during currency of the policy policy holder  died  on 04.09.2017 due to cerebral Maleria & Jaundice.  It is further case of the complainant that after death of the son, his father being the nominee  filed the claim petition to the OPs for settlement of the claim.  It is alleged that the OPs have assured to settle the claim but on 30.006.2018 repudiated the claim on the ground that the insured has suppressed the material fact of his annual income and occupation. The complainant alleged that there was no suppression of any material fact. So, challenging the said repudiation  as deficiency in service, the complaint was filed seeking  the relief as prayed in the complaint.

4.            The Ops    filed written version stating that  the complaint is not maintainable and there is no cause of action to file the complaint. Learned District Forum  lacks jurisdiction to entertain the complaint. It is also averred that the complaint is  not maintainable due to non-joinder of necessary party. It is specifically pleaded by the complainant that the policy holder had purchased the policy from the OPs  as alleged in the complaint  commencing from 09.11.2015 for a period of 40 days. The insured has filed the proposal form having its answers submitted by the policy holder. After incident they have received  the claim  and during investigation,   the insurer-OPs   found that insured has answered the  proposal form but suppressing  the material fact. It is specifically pleaded that the insured has suppressed about amount of income and his occupation. The OPs submit that the complainant has more income and he has got lot  business and as such he is not eligible to become policy holder  under the Insurance  Act,1938. Therefore,  they have repudiated the claim as no claim.

5.         After  hearing both the parties, following issues are framed for discussion.

(1) Whether the complaint is  maintainable.

(2) Whether the policy holder suppressed the material fact.

(3) Whether the complainant has proved the deficiency in service on the part of the OP.

(4)  Whether the complainant is entitled to get any compensation.

(5)  Whether other relief complainant is entitled to.

ISSUE NO.2  

 6.                This issue  is taken up at first being decisive to other issues.  It is settled in law that the complainant is to prove this case and also prove the deficiency in service on the part of the OPs. In the instant case it is admitted fact that the complainant’s has purchased policy  for 40 years from the OPs for sum assured of Rs.52,00,000/-. It is also not in dispute that  the policy holder  during currency of the policy expired having suffered from Maleria and Jaundice. It is also admitted fact that the death claim was filed. Now the question arises  who is to prove the suppression of material fact. It appears that Section-45 of the Insurance Act is to be  pressed into service for determining the fact in issue. The complainant has adduced evidence but We rely on decision of Hon’ble Apex Court in  Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814,SCR Supl. (2) 571 and Satwant Kau Sandhu –Vrs- New India Assurance Co.Ltd. (2009) 8 SCC,Pg316 and Manmohan Nanda-Vrs- United India  Insurance Co.Ltd. and others in Civil Appeal No.8386/2015 disposed of on 06.12.2021       where  Their Lordship  have consistently   observed   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.

7.           Aforesaid  decisions have also been  followed  subsequently  in  many decisions by Hon’ble Apex Court. In the instant case the OP has filed the written version but not  supported  with affidavit. However,  they have filed the documents to prove their plea. They have proved the proposal form vide Annexure-D where they have proved the part-II columns where  the present occupation of assured  has been filled up  as self employment  and the gross yearly income  is  noted as Rs.3,00,000/- per year.  The repudiation letter vide Ext.J only point out that  these two columns have been submitted by the policy  holder as false one. From Annexure-J it appears that they have gone through the investigation report which is as Annexure-G. After going through same it appears that he has found that the policy holder has got standard of living “APL”. The report does not disclose the meaning of APL. Moreover, it has been recorded as annual income of Rs.3,00,000/-. Not a single document is filed by the investigator to show that these two statements are based on evidence.

8.            When investigator’s report is not supported  with any material evidence the finding thereon as communicated by the OP remained far from truth. In Ext.J, another  ground has been taken  that informat had suppressed  about purchase of  policy from another company but it is not disclosed which company’s  policy has been purchased. Therefore, we are of the view that OP has miserably  failed to prove the suppression of material fact by the policy holder   while filled up the proposal form.  It is true that there has been any fact disclosed, the insurer could have taken a decision not to grant policy. But here no such ground of repudiation is alleged, on the otherhand OP has repudiated  the plea on the above ground which they failed to substantiate.   9.            In view of above, we are of the view that the OPs has not proved the suppression of material fact and as such  calling the policy in question is also vulnerable.  The issue no.2 is answered accordingly.

ISSUE NO.3

10.             We  have already held above that the OPs has failed   to prove  the suppression of material fact  by complainant while filled up proposal form, but learned counsel for the OP vehemently  urged that the investigator report ought  to have been accepted  because it has gathered the material basing on which they have reached  the  conclusion. On the otherhand learned counsel for the complainant submitted that the investigator’s report  must be based on any legal  evidence.  Be that as it may we have already assessed the material and come to  conclusion  that the repudiation of the claim on the ground being not proved, the complainant is held  to have proved the deficiency in service on the part of the OPs by  settling the claim as ‘no claim’. Issue no.3  is answered accordingly.

ISSUE NO.1,4 & 5

11.                    In view of Issue no.2  & 3 we are of the opinion that there is cause of action to file the complaint. Learned counsel for the OP urged that the complainant also should have produced the  transaction  by  Max  Life dtd.12.10.2015 to come to a conclusion. When law is clear  that the entire onus lies on the OPs to prove that the complaint is not maintainable in all respects we can not ask the complainant to supplement the repudiation of claim. It appears from the  complaint that it was repudiated on 30.06.2018 and the complaint has been filed on 06.11.2018. So, it is not barred by limitation.

12.         There is no other point raised about non-maintainability of the complaint. Learned counsel for the complainant  has proved  its plea for release of the sum assured and interest thereon but for not getting reason he has  mental agony and spent  cost, we have  already held  above that the complaint is maintainable and the repudiation is illegal. Complainant has proved the deficiency in service on the part of the OPs. Therefore, the complainant is entitled to the sum assured from the OPs. We are restrained   of awarding  interest because of consideration to grant compensation because  the trauma caused to  the father-complainant  due to loss of his son assured    is inconceivable.  It is multiplied  by unnecessary repudiation of claim  by the Ops. Therefore,  from the evidence of the complainant alongwith complaint, it is clear to show  the entire episode  of mental harassment to complainants. Therefore, we allow compensation of Rs.2,00,000/- payable by the OPs to the complainant, Besides, the litigation cost of Rs.25,000/- also allowed to complainant.  All these issues are answered accordingly.

13.           For  the foregoing discussion, the complaint is allowed on contest against the OPs with cost. The OPs are directed to pay the sum assured of Rs.52,00,000/- to the complainant alongwith compensation of Rs.2,00,000/-  and litigation  cost of  Rs.25,000/- to the complainant within a  period of 45 days from today, failing which    all the above  amounts would  carry interest @ 9 % interest  from today   till payment is made.

               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.