Heard learned counsel for both sides.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The factual matrix leading to the case of the complainants is that the husband of complainant No.1 had purchased life insurance policy commencing from 24.8.2010 for sum assured of Rs.10,00,000/-  from the OPs. It is alleged inter alia that the policy holder Prafulla Kumar Singh was an employee under Central Co-operative Bank. However, during currency of the policy, the policy holder died on 17.7.2012 in the house. The death certificate was obtained by the complainants. After that she and her children submitted claim for settlement of the assured amount. But the OPs illegally repudiated the claim stating that the deceased had suppressed the pre-existing disease of diabetic mellitus at the time of filling up of the proposal form. Challenging the said repudiation, the complaint was filed.

4.      OPs filed written version stating that the policy holder has three policies. The policy holder purchased one policy on 28.7.2001 for assured sum of Rs.50,000/-, Rs.2,00,000/- on 28.5.2007  and finally, he purchased the last policy in question commencing from 24.8.2010. They have paid compensation for first two policies but they found that the policy holder had suppressed the disease diabetes mellitus he suffered while filling up of the proposal form for last policy. Therefore, u/s 45 of the Insurance Act, 1938, they called the policy in question. Therefore, there is no any deficiency in service on their part.

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

                             “xxx   xxx   xxx

            The case is disposed of on contest by both the parties against the opp.parties. The opp.parties are directed to pay the assured amount of Rs.10 lakhs along with Rs.10,000.00 towards cost of litigation within 45 (forty five) days of getting this order. It is made clear that in case of any deviation of this order by the opp.parties, the opp.parties shall pay 12% quarterly compoundable interest on the assured amount of Rs.10,00,000.00 from the date of filing of this case i.e. from dt. 16.5.2014 till actual payment if made besides other penalties provided in the C.P.Act, 1986.”

6.      Learned counsel for the appellants submitted that the learned District Forum committed error in law by ignoring the written version filed by the OPs. According to him one Dr. P.K.Sahu had given certificate to the effect that he has treated the policy holder in 2010 for his suffering from diabetics mellitus. Further submitted that complainant No.1’s husband has also taken leave from his duty as he was suffering from diabetics mellitus. But the learned District Forum ignored all documents and allowed the complaint. So, he submitted to set aside the impugned order by allowing the appeal.

7.      Learned counsel for the respondent submitted that the learned District Forum has rightly rejected the evidence adduced by the OPs because no medical prescription or hospital record is placed before the learned District Forum to prove suppression of pre-existing disease by policy holder. He also submitted that the medical certificate submitted by the OPs does not support any medical prescription and rightly learned District Forum rejected the plea of the OPs. He also submitted that the service record is not clear to show that the policy holder has taken leave for his suffering from diabetics mellitus. So, he  relied upon that the judgment of the Hon’ble Supreme Court of India passed in Manmohan Nanda vrs. United India Assurance Company Ltd. and another passed in Civil Appeal No. 8386 of 2015. He supports the impugned order.

8.      Considered the submission of learned counsel for both the parties and perused the impugned order including the DFR.

9.      It is well settled in law that the complainants have to prove their case including the deficiency in service on the part of the OPs. But in the case of Mithoolal Nayak vrs. Life Insurance Corporation of India AIR 1962 Supreme Court 814, it has been held by the Hon’ble Apex Court which is as follows:-

                             “ xxx   xxx  xxx

The three conditions for the application of the second part of Section 45 are

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.”

10.    With due regard to the decision, it can be safely observed that within two years of making effect of policy the insurer have right to revoke the policy as per unamended Section - 45 of the Insurance Act, 1938 and onus lies on the insurer to prove all the above pre-condition before calling the policy in question within two years. So, it is for the OPs to prove the pre-existing disease and suppression of same by the deceased policy holder while filling up of the proposal form. The aforesaid decision has also been followed in the case of LIC of India and others vrs. Smt. Asha Goel and another reported in AIR 2001(Supreme Court) 549 and Satwant Kaur Sandhu vrs. New India Assurance Co. (2009) 8 SCC 316.

11.    The only plea taken by the OPs is that the policy holder has suppressed the pre-existing disease i.e. diabetics mellitus at the time of filling up of the proposal form. He relied upon the medical certificate issued by Dr.P.K.Sahu. No prescription filed to support this certificate. No investigation report is also there to support the certificate. Since the medical documents are not available, the certificate issued by  Dr.P.K.Sahu cannot be considered for the simple reason that the certificate was to be issued only after verification of the prescription. If the OPs relied upon the medical certificate, they were supposed to prove the same. In the absence of any original medical certificate or original prescription/report being produced and examination of Dr.P.K.Sahu, it is hardly to believe the copies, medical certificate issued by Dr.P.K.Sahu,  the learned District Forum has rightly did so. The office records of the policy holder do not disclose any disease.

12.    Moreover, above view is fortified by facts that the OPs have already paid the compensation for the other two insurance policies which were purchased in 2002 and 2007. Had there been any suppression of pre-existing disease by the policy holder, the OPs should not have paid compensation for those two policies also.

13.    In view of aforesaid discussion, we are of the opinion that the learned District Forum has rightly decided the case and there is nothing to interfere with it. The same is confirmed.

14.    The appeal stands dismissed. No cost.

          DFR be sent back forthwith.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.