Heard the learned counsel for the appellant.

2.                     None appears for the respondent.      

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 husband  of the complainant has purchased LIC policy on 15.04.2005 for sum assured of Rs.7,00,000/- on payment of required premium.  It is further alleged inter-alia that husband of the complainant died on 15.11.2007 and policy was in force by then. After the death the complainant being nominee of the policy holder filed the claim before the OP but the OP went on asking  of different documents. Inspite of submitting  different documents, the complainant did  not get relief as the OP did not settled the amount. So, the complaint was filed showing the deficiency in  service of the OP.

5.            The OP filed written version admitting about purchase of the policy on 15.04.2005 by the policy holder. It is further averred that in November,2005 the policy holder has  home dialysis  and compensation, as such he has got renal failure from time to time. The OP took the plea that she has suppressed  material fact while  filling  the proposal form.  Apart from this the complainant was asked to submit the documents but  she failed to supply same for which the OP did not settle the claim. There is no deficiency in  service on the part of the OP.

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

                Xxxxxx                xxxxx      xxxxxxxx

   “    The complaint is allowed on contest in the light of the observations made in the preceding paragraphs. The Opp.Party is directed to pay the sum assured of Rs.7,00,000/-(Rupees seven lakhs) only to the complainant with other benefits as applicable to the policy alongwith interest @ 9 % per annum from the date of filing of the present case i.e. 4.3.2013 till its actual payment. Besides, the Opp.Party is directed to pay cost of the litigation of Rs.2,000/-(Rupees two thousand)only to the complainant. The  compliance of the directions shall be made by the Opp.Prty within a period of one month from the date of receipt of this order failing which the rate of interest will be charged @ 12 % per annum instead of 9% over and above the total awarded amount.”

7.                Learned counsel for the appellant submitted that  learned District Forum  has committed error in law by passing the impugned order without considering the written version filed by the OP. He submitted that the complainant is duty-bound to submit all documents of  treatment  undergone by the diseased -the policy holder. But  same have not been  submitted. Moreover, the complainant’s husband was suffering from renal failure but he has suppressed about same while filled up proposal form.  Therefore, the impugned order being illegal should be set-aside.

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

9.                  It is for the complainant to prove the deficiency of service on the part of the OP. But in the instant case the OP has taken plea that the complainant’s husband was suffering from renal failure earlier to proposal form submitted. On the otherhand they have taken plea that the policy holder has suppressed the material fact. Therefore, the onus lies on the OP to prove that the complainant is not  entitled to any relief. But in the instant case the Hon’ble Supreme Court of India  passed judgment  in Moothlal Nayak-vrs- LIC of India in AIR 1962 SC-814 which   may be pressed into service. With due regard to the aforesaid decision, the onus lies on the OP to prove the suppression of material  or mis-statement or fraud by the policy holder while   purchasing policy on filling of the proposal form.  But at the same time we have to see whether Section-45  of the Insurance Act can be applied in this case. Section -45 of the Insurance Act 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 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 facts which it was 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.”                 

 10.         The aforesaid provision was the provision earlier to the amendment  in 2014. In the instant case  admittedly policy commenced on 15.04.2005 and the death certificate shows the policy holder died on 15.11.2007. Due to non-obstinate  clause, the  policy can not be called in question under any circumstances after two years of commencement of policy. This view has been  taken by this Commission in earlier occasion. Apart from this the  allegation of pre-existing disease is not there because the policy holder only went under  home dialysis in November,2005 after the policy commenced. Therefore the OP can not take benefit U/S-45 of the Insurance Act.

11.           Calling for documents from complainant by the OP is not forthcoming with rational reasons. On the otherhand, non-settlement of the claim for years together and refusal to pay assured amount  on wrong application  of  Section -45 of the Insurance Act are deficiency in  service on the part of the OP. The complainant has thus proved the deficiency in  service on the part of the OP. Therefore, this Commission is in agreement of the view of the learned District Forum.  Learned counsel for the appellant submitted that the interest should  not be allowed from the date of filing of case but it should be found from  the date of  disposal of the case. Therefore, by accepting his contention, this Commission while affirming the order of the District Forum hereby modified the impugned order  by directing the OP to pay  Rs.7,00,000/- the  sum assured to the complainant with interest @ 9 % per annum from the date of impugned order till the date of payment. Rest  part of the impugned order will remain intact. 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.