Heard learned counsel for the appellant.
2. 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.
3. The unfolded story of the complainant is that the complainant’s father had purchased two policies i.e. No.9858952 for sum assured of Rs.2,50,000/- and No.14517625 for sum assured of Rs. 1,20,000/- commencing from 28.12.2005 and 25.07.2005 respectively. Thereafter on 29.10.2006 the complainant’s father died in Kalinga Hospital due to heart attack. Thereafter the claim was made before the Op but it was repudiated due to suppression of material facts. Challenging said repudiation, the complaint was filed.
4. The OP No.1 & 2 filed written version that the complaint is not maintainable and the policy holder has suppressed the material facts of suffering from the diabetes and hyper tension while filling up the proposal form. Since, the policy holder has suppressed the material fact, they have repudiated the claim U/S-45 of the Insurance Act,1938. Therefore, they have no deficiency in service on the part of the OP.
5. After hearing, learned District Forum has passed the following order:-
Xxx xxx xxx
“The complaint be and the same is allowed on contest against OPs 1 and 2 and ex-parte against OP No.3. OPs 1 and 2 are directed to pay Rs.1,20,000/-, the sum assured under the policy No.1451 7625 to the complainant on behalf of the legal heirs of deceased life assured Jagdish Pr.Didwania who are entitled to get the same and to pay Rs.2,50,000/- the sum assured under the Policy No.9858952 to the legal heirs of deceased life assured Jagdish Pr.Didwania under the said policy and to pay Rs.10,000/- to the complainant towards compensation for mental agony and harassment suffered by him as well as to pay Rs.500/- towards cost of litigation to him within one month hence.”
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 perspective and the medical documents filed by the OP. According to him the policy holder was treated before the doctor in 2006 where they have admitted that he was suffering from diabetes and hyper tension for last 15 years but the policy holder has answered in negative against the question whether he was suffering from any diabetes and hyper tension. He submitted that since the insurance contract is based on the principle of ubrima fides and the insured has made breach of agreement of the insurance, they have repudiated the claim U/S-45 of the Insurance Act,1938 But learned District Forum has not applied judicial mind to such fact and law. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the respective parties, perused the DFR and impugned order.
8. It is admitted fact that the complainant’s father has purchased two policies but he died on 29.10.2006 in Kalinga Hospital due to cardiac failure. The OP has taken plea that the policy holder has suppressed the material fact. It is settled in law in the decision of Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814,SCR Supl. (2) 571 and subsequent decision of Hon’ble Apex Court that the onus lies on the OP to prove the pre-conditions before calling the policy in question U/S-45 of the Insurance Act. There are three pre conditions which are as follows:-
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.
9. Therefore, it is for the OP to prove the proposal form of insured and the medical of documents. The proposal form dtd. 30.12.2005 at column-12 are as follows:-
12. Is there a history of diabetes, cancer, high blood pressure, heart or kidney disease, communicable diseases like tuberculosis, alcoholism, mental illness or suicide in your family ?
Family details-Proposed Insured
Family Member Age Heath status if alive Age when died Cause of death
Father …. ……. 59 Old age.
Mother … ….. 62 Old age.
Brothers 66 Good ,,, …..
Sisters 48 Good … ….
Spouse … …. 43 fever
Children 31,29 All good … …..
It appears that the policy holder has answered that there is no such diseases he suffered. He answered in negative. The Op in order to prove their plea have also produced the documents at Annexure-D which shows that on dtd.10.08.2006 he was diagonised with diabetis, hyper tension and fever with history that complainant has been suffering from fever for ……….. This document has not proved the plea of the OP because this hospitalization is ….. proposal form filled up. Hence, the OP relied on another document of Kalinga Hospital which is also the document dtd.29.10.2006 vide Annexure-F and there the disease was diagnonised with seizure disorder, DCM but all these documents are prepared after the proposal form filled up. Not a single document of any doctor showing pre pre-existing disease or diabetes or hyper tension is filed by the OP before proposal form is filed. Therefore, we are constrained to observe that the OP has failed to prove the suffering of policy holder from diabetes or hyper tension prior to filling up the proposal form.
10. In the aforesaid analysis we found no reason to interfere with the findings of the learned District Forum. Hence, their findings are confirmed and appeal being devoid of merit 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.
