Learned counsel for the appellant is present.

                                                        None appears on behalf of the Respondent.

2.      This 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.      Learned counsel for appellant submitted that the complainant has purchased L.I.C policy No.573015075 dt.28.3.2011 commencing from 28.1.2011 for the assured sum of Rs.2,50,000/-.  The complainant alleged interalia that the insured died on 26.7.12.  The complainant being nominee made a claim but the O.P repudiated her claim on the ground that the policy holder had suppressed the material fact of pre-existing disease.

4.      Learned counsel for appellant submitted that O.ps filed written version refuting the allegations made in the complaint.  It is the plea of the O.P that before the proposal form was filled up, the policy holder was suffering from diabetes, hypertension and renal diseases.  According to O.P. the policy holder has not disclosed about the diseases while filled up the proposal form.  Learned counsel for the appellant submitted that repudiation of the claim was justified because of the medical report from Sir Gamgaram Hospital,New Delhi is available to show his pre-existing diseases.

5.      Learned counsel for the appellant submitted that the learned Dist. Forum after hearing both the parties passed the following order which is as follows:                                            

xxx                       xxx                        xxx

The insurance is a contract between the insured and the insurer to the policy and governed by the terms and conditions of the contract i.e. term of the policy is fundamental or material.

Before commencing of insurance the duty of the insurer is to properly check and verify the hath and condition of the insured.

 In Apex Court decision 2008 C.T.J 917(SC) Dharmendra Goel Vrs. Oriental Insurance Company it is held that the insurance company after having accepted the value of a particular insured at the time of insuring the good or life cannot disown that the very figure or the present or are the after when they are called upon to pay the compensation.

“Take it or leave it” attitude in such case is not only un warranted being bad in law but is ethically indefeasible as well.  In such a case the insurer would be liable to pay the compensation as it had accepted the premium.  Hence to meet the ends of justice the following order is passed.

In the result the petition of the complainant is allowed on contest against the O.Ps.  The O.Ps are directed to pay the death benefit of the insurance policy no.573015075 to the legal heirs of the policy.  The parties to bear their own cost, there is no compensation.

                                                xxx                       xxx                       xxx

5.      Learned counsel for the appellant submitted that the learned Dist. Forum committed error in law by allowing the complaint without going through the written version.  Learned Dist. Forum ought to have held that complainant failed to prove the deficiency of service by the O.P.

6.      Learned counsel for appellant submitted that learned Dist. Forum committed error in law by not considering the written version of the O.P. as it has not discussed about the suppression of material fact in detailed manner and passed order in favour of the complainant.  The decision relied upon by the learned Dist. Forum is not applicable to the present case.

7.      Considered the submissions of the appellant, perused the D.F.R including the impugned order.

8.      It is an admitted fact that the complainant’s husband has purchased an L.I.C policy on 28.3.2011.  It is not in dispute that the policy holder died on 26.7.2012. When the policy holder dies within 2 years from taking policy, U/S-45 of the Insurance Act onus lies on the complainant to prove deficiency of service on the part of O.P.

9.      It is also settled in law that repudiation of claim on the ground of mis-statement or fraudulent statement or suppression of material facts are all to be proved by the insurer, O.P.  No doubt the Form of proposal shows that the complainant answered to the proposal form all about the pre-existing diseases are nil.  Counsel for the appellant produced the medical report which shows that in the month of February,2011 the policy holder has been treated at Sir Gamgaram Hospital,New Delhi as she had undergone dialysis.  Learned counsel for the appellant admitted that this medical document has not been filed before the learned Dist. Forum.  In such a situation, onus lies on the insurer to prove the suppression of material fact.  The O.P should be allowed to file such valuable documents after the case is remanded to Dist. Commission.  On the other hand he submitted to remand the matter for rehearing of the case and the O.P will get a chance to discharge the onus of proof lying on him.

10.    In view of the above discussion, this Commission is of the view that when insured has got duty to prove the documents and it has not been done, so the case should be remanded subject to payment of cost by the appellant.  Complainant should be compensated for delay in disposal of case while case in remanded for denovo hearing.

11.    For the above reasons, the appeal is allowed and the matter is remanded to the Dist. Commission for denovo of the case subject to payment of Rs.5000/- by the appellant to the complainant before the Dist. Forum.  Thus the impugned order is set aside with a direction to the learned Dist. Forum to hear both the parties by offering them an opportunity for filing of evidence if any and dispose of the matter within 30 days from the date of receipt of this order.

Copy of this order be supplied to both the parties free of cost and they are directed to appear before the Dist. Commission on15.2.2021 to take further instruction.