Heard learned counsel for the appellant.
2. Captioned appeal is 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. The unfolded story of the complainant is that complainant has purchased a policy for a sum assured of Rs. 3,00,000/- on 28.3.2011. It is alleged inter alia that the complainant died on 8.6.2014. Thereafter, claim was made but the opposite party repudiated the claim on the ground that the complainant has suppressed his pre-existing disease having suffered from brain tumor along with Hemiplegia. The complainant challenged the repudiation as deficiency in service and filed the complaint petition.
4. On the other hand, opposite party filed written version stating that the complainant’s husband has purchased the policy on 28.3.2011 and paid the premium till 28th May, 2014. It is also stated that within 10 days from the date of revival of the policy, the husband of the complainant died. He has revived the policy stating that he was in a good health condition but suddenly died on 8.6.2014. After obtaining the claim from the complainant, the opposite parties enquired the matter and found that the complainant was suffering from brain disease, but he has suppressed the same during the revival of the policy. Therefore, they have repudiated the claim. There is no deficiency in service on their part.
5. After hearing the parties, learned District Forum passed the following order:-
xxxxxx xxxxxx
“ The complaint petition is allowed and the O.P. is directed to settle the Death Claim of the complainant and pay the sum assured of Rs. 3,00,000/- within 30 days of receiving this order. Further the O.P. is directed to pay a sum of Rs. 5,000/- towards compensation, Rs. 5,000/- towards cost of litigation to the complainant within 30 days of receiving this order, failing which the O.P. shall pay 9% interest on the above amount till the day of actual payment to the complainant.
Office is directed to supply free copies of the order to the parties free of costs receiving acknowledgement of the delivery thereof.”
6. Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not considering the written version filed by the opposite party with proper perspectives. According to him, revival of the policy was made as per the form filled up by the policy holder. He has filled up the form showing that he was in a good health condition. But after enquiry they found the policy holder was suffering from paralysis with Hemiplegia. Since the complainant has suppressed the material facts in the revival form, they have repudiated the claim of the claim under Section 45 of the Insurance Act, 1938. He also submitted that the two years has to be computed from the date of revival but the learned District Forum committed error by counting from the original date of commencement of the policy, therefore, he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submissions, perused the DFR including the impugned order.
8. It is admitted fact that the complainant’s husband has purchased the policy which commenced from 28.3.2011. It is also submitted by the opposite party that the complainant has revived the policy on 28th May, 2014 showing his health condition was good. Section 45 of the Insurance Act, 1938 (pre-amended) has got the following provisions:-
“45. Policy not to be called in question on ground of mis-statement after two years- 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 d ate on which it was effected, be called in question by an insurer on the g round 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 or 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 fact which it as material to disclose.
Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.”
9. Hon’ble Apex Court in Mithoolal Nayak vrs. Life Insurance Corporation of India, AIR 1962 814 Lordships have been pleased to observe as follows:-
“xxxx xxxx xxxx
In the case before us the policy was issued on March 13, 1945, and it was to come into effect from January 15, 1945. The amount insured was payable after January 15, 1968, or at the death of the insured, if earlier. The respondent company repudiated the claim by its letter dated October 10, 1947. Obviously, therefore, two years had expired from the date on which the policy was effected. We are clearly of the opinion that s.45 of the Insurance Act applies in the present case in view of the clear terms in which the section is worded, though learned counsel for the respondent company sought, at one stage, to argue that the revival of the policy some time in July, 1946, constituted in law a new contract between the parties and if two years were to be counted from July, 1946, then the period of two years had not expired from the date of the revival. Whether the revival of a lapsed policy constitutes a new contract or not for other purposes, it is clear from the wording of the operative part of s.45 that the period of two years for the purpose of the section has to be calculated from the date on which the policy was originally effected; in the present case this can only mean the date on which the policy (Ex. P-2) was effected......”
10. The aforesaid view has been followed by another judgment of the Hon’ble Supreme Court of India in Reliance Life Insurance Co. Ltd. & Anr. Vrs. Rekhaben Nareshbhai Ratho, 2019 (6) SCC 175 where Their Lordships held as follows:-
“19. In Mithoolal (supra), a Bench of three learned Judges of this Court dealt with a case where a policy had been issued on 13 March, 1945. The policy came into effect from 15 January, 1945. The amount insured was payable after 15 January, 1968 or at the death of the insured, if earlier. The insurer repudiated its claim on 10 October, 1947. Hence the provisions of Section 45 were applicable. The three Judge Bench rejected the submission that a period of two years had not expired from the date of revival of the policy, holding that from Section 45 it was evident that the period of two years can only mean the date on which the policy was effected. From that date a period of two years had clearly elapsed when the insurer repudiated the claim. The significance of the decision in Mithoolal (supra) for this case lies in the fact that the Court specifically kept open the issue about what would govern a case where Section 45 did not apply.
11. In view of the aforesaid discussion, we are of the view that two years computation should be taken into consideration from the date of purchase of the original policy. Since two years have already elapsed from the date of commencement of the policy holder i.e. 28.3.2011 by the time of death, Section 45 of the Insurance Act cannot be called in question.
12. In view of the aforesaid discussion, there is no error in the impugned order of the learned District Forum and as such, it is confirmed.
13. Accordingly, the appeal stands dismissed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
