Heard the learned counsel for the appellant.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the policy holder M.Appa Rao had purchased the policy on 07.06,.2008 and paid the premium during life time. He died after two years of policy commenced. Thereafter the complainant being the nominee made the claim before the OP to settle the claim but it was repudiated on the ground that the policy holder had suppressed the pre-existing disease. Being not satisfied with the repudiation the complaint was filed.
4. The OP filed written version stating that M.Appa Rao having suppressed his pre-existing disease has filled up the proposal form by denying about any hospitalization for illness he has suffered. It is further averred that during enquiry the OP came to know that the policy holder was treated for coronary diseases by Dr. K.V.B. Bijay Kumar before filling up proposal form by policy holder. So, they have no deficiency in service in repudiation of the claim.
5. After hearing both the parties, learned District Forum passed the following order:-
“ The opposite parties are directed to pay the insured amount of the Rs.1,00,000/- alongwith compensation fo Rs.10,000/- and cost of litigation of Rs.500/- to the complainant within one month from the date of receipt of this order, failing which the Ops are liable to pay penal interest @ 12 % p.a. on the above awarded amount till the date of payment.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version filed by the OP with proper perspectives. According to him the policy holder had suppressed the material fact while filled up the proposal form and as such U/S-45 of the Insurance Act they have repudiated the claim. Learned District Forum ought to have considered the medical papers and other documents to find out that the policy holder has suppressed his pre-existing disease which is very material one to consider. He drew attention of the Commission of the prescription issued by Dr.Bijay Kumar. So he submitted to set-side the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
8. It is admitted fact that the diseased had purchased the policy commencing from 07.06.2008 and it is admitted fact that he has died on 14.08.2010. It is not in dispute that the complainant has paid the premium regularly at the time of death.
9. In view of the decision of the Hon’ble Supreme Court in Mithoolal Nayak-Vrs-Life Insurance Corporation of India in 1962 AIR 814,SCR Supl. (2) 571 and same being followed later by other decisions of Hon’ble Supreme Court, it has been settled that it is for the OP to prove the suppression of material fact or mis-statement or false statement while said suppression has been used by the OP to repudiate claim. Thus, onus lies on the OP to prove the pre-existing disease and suppression of same by the policy holder. Before going to that we are to analyze Section-45 of the Insurance Act which is as follows:-
“ No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter of suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. “
From the above provision and Mithoolal case it is to be found that whether following pre-conditions and fulfilled.
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. In view of above provision, it is clear that no policy can be called in question under any ground as mentioned in the said provision after the two years of commencement of policy. On the otherhand in the instant case the policy holder died after two years of commencement of the policy. Of course said two years have been amended in 2015 to three years. However, it is very clear that the death of the policy holder took place two years after commencement of the policy and for that the policy in question can not be recalled by the OP on the ground that the policy holder suppressed the material fact with regard to the pre-existing diseases. Even if it is considered, the policy commenced in 2008 but the documents of doctor Dr.K.V.B. Bijay Kumar which are produced before us is of 2010. Therefore, it can not be said that the policy holder had suppressed the material fact while filled up proposal form.
11. In view of above discussion, we hereby confirm the impugned order by directing OP to comply same within 45 days from today failing which impugned order would be carried with interest @ 18 % per annum from the date of impugned order till date of payment.
12. Consequently appeal sans merit and as such 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.
