Heard learned counsel for the appellant virtually.

2.                         None appears for the respondent on call.

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 factual matrix leading to the case of the complainant is that  the complainant is the wife of deceased  Arun Kumar Rath who has purchased the policy bearing No.574006406 commencing from 28.08.2015 for sum assured of Rs.3,80,000/-. The complainant alleged inter-alia that on 13.05.2016 the deceased assured suffered from fever and admitted in MKCG Medical College & Hospital.  On  the same day he expired due to septicemia. Thereafter the complainant filed claim  before the respondent but the respondent after verifying records repudiated the claim stating that the deceased assured had suppressed the material facts of pre-existing diseases. Challenging the repudiation  of the claim the complainant filed the complaint. 

 5.                  The OP filed written version stating that the complaint is not maintainable and there is no cause of action to file the complaint. However, after getting information they called  for the medical documents of the deceased assured. After verifying same they concluded  that the deceased assured was suffering from Hydrocele for last five years. But on the date of filling of proposal form in 2015 he has suppressed about suffering from Hydrocele disease. Therefore, U/S-45 of the Insurance Act, they have called the policy in question. They have no any deficiency of service on their part.

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

              “In the result, complainant’s case is partly allowed against the Ops who are jointly and severally liable as such they are directed to pay the sum assured amount of Rs.3,80,000/- bearing No.574006406 alongwith Rs.2000/- towards cost of litigation to the complainant. The aforesaid order shall be complied by the Ops within 45 days from the date of receipt of this order failing which all the dues shall carry 12% interest per annum till final payment is made. The case of the complainant is disposed of accordingly. No order as to compensation.”

7.           Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version and plea taken by the OP. According to him in the proposal form submitted by the deceased assured, he has denied to have any Hydrocele disease but from medical documents  he has got the past history recorded  that he was suffering from Hydrocele disease for last five years and infact he died due to infection of the Hydrocele which caused  septicemia.

8.           Learned District Forum has not considered all these evidence on record and passed illegal impugned order. Therefore, he submitted to allow the appeal by setting aside the impugned order.

9.             Considered the submission of learned counsel for the appellant, perused the DFR and  impugned order.

10.                  No doubt the complainant has to prove the deficiency of service on the part of the OP. But in the instant case the OP has  repudiated claim by resorting to Section-45 of the Insurance Act. In the decision reported in Mitholal Nayak-Vrs- Life Insurance Corporation of India AIR 1962 Supreme Court 814 Where  Their Lordship observed  followed principle of law which is as follows:-

               Xxx                      xxxx                      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.”

 11.             The aforesaid view has been well followed with due regard in the decision rendered by this Commission in the case of Senior Branch Manager,LIC of India,Berhampur & Another-Vrs—Sukanti Panigrahy reported in 2021(1) OLR,Page-238. In view of the aforesaid decision  the onus lies on  the OP to prove that the deceased assured was suffering from pre-existing disease and he has suppressed such material facts.

12.           The clause-11 of the proposal form shows that  the deceased assured has answered in the following manner by filling up same on 12.09.2011.  

.        Questions                                            Answers

(i) During  the last five years did you consult

    a Medical  Practitioner for any ailment

    requiring treatment for more than a week ?   No

(ii) Have you ever been admitted to any hospital

      Or Nursing home for general check-up,

      Observation, treatment or operation ?         No

(iv)  Are you suffering from or have you ever

       Suffered from Diabetes,Tuberculosis,

       High Blood pressure,Low Blood pressure,

Cancer,Epilepsy,Hernia,Hydrocele,

Leprosy or any other diseases ? 

                                                              No

(ix) What has been your usual

       State of  health ?                          GOOD.

12.         The aforesaid question with regard to clause-11(iv) shows  that deceased assured was not  suffering from  any  diseases including Hydrocele disease for which  he has answered in negative. But  copy of the Bed head  ticket shows that on 13.05.2016 the doctor revealed the history of his suffering from  Hydrocele disease  for last five years. On the otherhand, the deceased assured is found to have suppressed  his pre-existing disease while filled up the proposal form. Learned District Forum has observed  this lapse    as technical error. But this Commission do not agree with the view taken by the learned District Forum. On the otherhand, this Commission is of the view that the deceased assured  has suppressed the material facts  about his pre-existing  disease while filled  up the proposal form to  purchase of the policy. As such there is breach of contract of insurance which is bared  on principle of  UBERRIMA FIDES. So, there is no deficiency of service on the part of OP for repudiating claim.  Thus, the impugned order of the learned District Forum is liable to be set-aside and it is set-aside.

           The appeal stands allowed. 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 if  copy of order received from this Commission. 

          DFR be sent back forthwith.