Heard learned counsel for the appellant.
2. None appears for the respondent.
3. 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.
4. The unfolded story of the complainant is that complainant’s mother has purchased policy on 13.09.2011 for sum assured of Rs.2,00,000/-, but she died on 13.06.2013. The complainant alleged inter-alia that the complainant informed the OP and filed the claim. The complainant alleged that on 01.10.2014 the OP No.2 sent a letter dtd.01.12.2014 repudiating the claim on the ground that insured has suppressed her marital status at the time of submitting proposal. Alleging about the deficiency of service for repudiating the claim, the complaint was filed.
5. Learned counsel for the appellant submitted that the OP filed written version stating that the complainant’s mother had purchased the policy in question and as per death certificate the insurer died on 13.06.2013. After receiving information they have started investigation and during investigation it was observed that the policy holder was widow while she propose to purchase policy. Thus, the insurer has suppressed the material fact to show her widow status. Para-5 of the condition in the policy is clear to show that if there is suppression of material fact with reference to Section-45 of the Insurance Act,1938 the policy shall be void. Thus, the OP having found the insurer to have suppressed the material fact, they have repudiated the claim. There is no deficiency of service on their part.
6. Learned District Forum after hearing both the parties, passed the following order:-
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“Based on aforesaid discussion, the Forum allowed the complaint and directed the opposite parties to pay the insurance claim amount of Rs.2,00,000/-(Two lakh rupees) only and also directed to pay a sum of Rs.5,000/- as costs of litigation to the complainant without any compensation for mental agony, harassment which amounts to deficient of services of the Ops, as the denial of claim are involved in various ambiguity questions. Let this order be complied by the opposite parties within a period of 35 days from the date of communication thereof failing which the amount of Rs.2,00,000/- (Two lakh rupees)only shall attract interest @ 8 % per annum from the date of this order till actual payment. “
7. Learned counsel for the appellant vehemently submitted that learned District Forum has utterly failed to appreciate the case of the appellant. According to him the insurance contract being based on good faith has been violated by the insured by suppressing her marital status and as such violated the condition of the policy. Learned District Forum ought to have considered such fact before passing the impugned order.
8. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not appreciating the para-10 of the proposal form where insurer had not disclosed her marital status by keeping the relevant column blank. He further submitted that all these contents filled up in the proposal form are all material facts. Had there been mention of her marital status as widow, the OP would have considered the same to allow to purchase policy or not. Learned District Forum ought to have considered all these facts. Since, the material facts have been suppressed by the insured, the repudiation of the claim is proper and legal. The impugned order of the learned District is thus should be set-aside by allowing the appeal.
9. Considered the submission of learned counsel for the appellant, perused the DFR including the impugned order.
10. The onus lies on the complainant to prove the deficiency of service on the part of the OP. It is admitted fact that the mother of the complainant has purchased the policy from OP for sum assured of Rs.2,00,000/- on 13.09.2011 and have also paid premium regularly but she died on 13.06.2013. Since, the question arises about the suppression of material fact, it is necessary to go to the Section-45 of the Insurance Act. In the decision of Mithoolal-Vrs-LIC of India reported in AIR 1962(SC)814 and subsequently followed same by the Hon’ble Apex Court in P.C.Chako & another-Vrs-Chairman,LIC of India & another reported in AIR 2008(SC)424 where Their Lordship observed that three conditions for the application of second part of Section-45 of Insurance Act,1938. are:-
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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.
It is observed therein that insurer has to prove aforesaid condition.
11. The only document relied on by the OP is the proposal form submitted by the insured. Learned counsel for the appellant drew attention of the Commission to the column-10 which relates to family history of proposer. It appears against entry of name of wife/husband, nothing has been filled up. When there is no any entry made at that time it shows that she has not filed up same, knowing well that she has no husband survived to allow her to fill up same. So, same can not be said as suppression of material fact by insured.
12. It is observed in Reliance Life Insurance Co.Ltd-Vrs-Rekhaben Nareshbhai Rathod in Civil Appeal No.4261 of 2019 arising out of SLP © 14312 of 2015) “that the fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact as this Court held in Satwant Kumar, there is a clear presumption that any information sought in proposal form is material for the purpose of entering into a contract of insurance. Each representation of statement may be material to the risk. The insurance company may still observe Insurance Protection on alternative terms.”
13. Moreover, her illegible signature appears on the proposal form to show her as illiterate woman, particularly when the signature of another person finds in the same form to have explained the contents of same to proposer. Therefore, it must be observed that the insured has not filled up the family history on her own by suppression of material fact.
14. Apart from this when the proposal form is filled in keeping such column blank, the insurer could have rejected the policy because proposal form being not filled up in all respect. In such circumstances, it must be held that the OP has not proved the suppression of material fact by insured. When the fact is not proved by the OP as to suppression of the such fact itself, the question whether it is material or not is far from to be proved. Be that as it may, it is observed that the insured has not suppressed the material fact about the status as widow. Memo of citation and written note of submission filed by the appellant have been considered as mentioned above. Had she given any evasive answer about presence of husband, then it would have been considered as suppressing material fact.
15. The question arises whether this widowhood is a ground to repudiate the claim. The proposal form is silent to show any column to fill up same as “widow”. So repudiating claim on such ground is fraudulent one. It is quite clear from the Article 14 & 15 of the Constitution of India that the right of the woman should be given special place to protect their rights. The allegation of the Op that the insured has not disclosed her widowhood while filling up the form is against rendering “ social justice” as available in the preamble of the Constitution.
16. In view of aforesaid discussion, the contention of the learned counsel for appellant that the repudiation is proper for suppressing the material fact by the insured as to be widow is indefensible. The learned District Forum have also discussed the evidence in detail and there is nothing to interfere to their finding. Hence, the finding of the learned District Forum is confirmed.
The appeal stands dismissed. No cost.
DFR be sent back forthwith.
Free copy of the order be supplied to the respective parties.
