Heard learned counsel for the appellant. None appears for the respondent.

2.              This appeal is  filed  U/S-41 of erstwhile  Consumer Protection Act, 2019(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   case of  the complainant, is that  the complainant is  nominee of life assured  who had purchased the insurance policy from the OP commencing from  21.04.2015  to 20.04.2023 for sum assured of Rs.3,60,000/- with benefit of accident which would  be enhanced to Rs.4,14,000/-. It is alleged inter-alia   that life assured died  due to cancer disease on 18.07.2015. It is alleged that after the death of the life assured, the son of the complainant has made his claim before the appellant  for payment of the death benefit under the said policy  but the appellant  remained silent over the matter and finally repudiated the claim on 06.05.2016. Challenging said repudiation, the complaint was filed.

4.            The  OP    filed written version stating that  the complaint case is barred by limitation and they are not given sufficient opportunity to place the matter before the learned District Commission and they have already investigated and found that the life assured  has suppressed his pre-existing disease  having  suffered from stomach cancer. Learned District Forum without  considering the fact and law has disposed of the matter. They averred that  the cause of action arose on 06.05.2015 whereas the complainant filed the case on 25.08.2020. Since, the case is barred by limitation, the complaint should be dismissed.

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

               Xxxx              xxxx              xxxx

         “ The case is allowed on contest against the OPs on contest. Opposite Parties are  directed to settle  the claim of the complainant and pay the death claim sum of Rs.4,14,000/- against the policy No. 0322702191 to the complainant  together  with interest thereof  at the rate of 6 per cent per annum from the date of filing of the case i.e. 14.09.2020 till actual payment is made. Since the complainant is awarded  with interest on the insured amount as above, so, no separate compensation is awarded as claimed by him. The above amount shall be paid within 30 days from the date of receipt of this order. The case is accordingly disposed of with an order of Rs.2,000/- towards cost of litigation to be paid by the OPs to the complainant within the above period. “

6.            Learned counsel for the appellant submitted that learned District Forum has committed error in law by not going through the written version  with proper perspectives. According to him the complainant had suppressed the pre-existing disease while filled-up the proposal form. So, he submitted to set-aside 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 life assured has died having suffered from cancer within two years from the date of commencement of the policy. It is also not in dispute that  complainant being nominee has approached  for settlement of claim but same has been repudiated for the simple reason that there is suppression of pre-existing disease  while filling up the proposal form. We have to find out  whether the complaint is maintainable. Learned counsel for the appellant strenuously  pointed out that long after two years of repudiation of claim  the complaint has been filed. We have verified the DFR and found that   all the materials have not been considered by the learned District Commission. We  gone through the Order sheet dtd.14.09.202 where under  complaint case has been admitted but there no consideration of petition of condonation of delay.  When there is already limitation  petition filed learned District Commission should have considered the petition first. It is fit case for remand  to the learned District Commission  for  consideration of the petition for  condonation of delay at first. It appears  from the impugned order that the OP have not filed any document  but learned  counsel for the appellant  submitted to consider  the documents filed by them  prior to disposal of the case in the execution petition for limitation is allowed.

9.             In view of above circumstances, we are of the view that the matter should be remanded  back to the learned District Commission    for consideration of petition for limitation and  for denovo hearing if delay is considered. Therefore, we hereby allowed the appeal by remanding same to the learned District Commission with a request to consider the petition for limitation  filed before it and also in the event of allowing  such petition,  allow both the parties to adduce evidence if any and dispose of the matter within a period of 60 days from the date of receipt of this order. Both the parties are directed to appear before the learned District Commission on 27.03.2023  to take further instruction.

                  The appeal is disposed of accordingly. 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.

                   Statutory amount be refunded.