Heard learned counsel for both sides.
2. Here is an appeal 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 factual matrix leading to the case of the complainant is that the wife of the complainant has purchased a policy of sum assured of Rs.10,00,000/- on 14.3.2005 from the OPs. it is alleged inter alia that the wife of the complainant fell down in a drain and died on 16.1.2006. Thereafter, the claim was made by the complainant to the OPs who repudiated the same on 25.3.2008 stating that the wife of the complainant has suppressed the pre-existing disease. Challenging such repudiation, the complainant filed the complaint.
4. OPs filed written version stating that they have issued the policy to the wife of the complainant after she submitted the proposal form after filling up of the same. It is further averred that the wife of the complainant died due to asphyxia but not due to fall on the drain. They also stated that the wife of complainant was on leave in her office having remained on leave from 30.7.2004 to 29.8.2004 on the ground of medical treatment for the disease “AC PID Adenamyasis”. The policy holder while filling up of the proposal form has not admitted about such fact in her proposal form. So the policy holder was found to have suppressed the material fact. Therefore, there is no other option than to repudiate the claim. So there is no any deficiency of service on their part.
5. After hearing both parties, the learned District Forum was pleased to dismiss the complaint by accepting the case of the OPs.
6. Learned counsel for the appellant submitted that the learned District Forum has committed error in law by relying upon a piece of medical certificate submitted by the OPs without any medical prescription attached to it. When the complainant has only advised for rest for such period, that does not amount to any disease she has suffered which she was required to mention the same in Para – 11 of the proposal form. Learned District Forum ought to have applied judicial mind to the facts and law in this case. Therefore, he submitted to allow the appeal by setting aside the impugned order.
7. Learned counsel for the respondents submitted that learned District Forum has analyzed the case under the correct provision of law and the OPs have proved the pre-existing disease of the policy holder. He submitted that the impugned order is legal and correct and it should not be disturbed.
8. Considered the submission of learned counsels for the respective parties and perused the DFR including the impugned order.
9. Complainant is duty bound to prove the deficiency of service on the part of the OPs but for the nature of the dispute Section - 45 of the Insurance Act is pressed into service.
10. Law is well settled that u/s 45 of the Insurance Act, the Insurance Contracts are based on “uberrima fides”. This principle is already well discussed in the case of Mithoolal Nayak vrs. Life Insurance Corporation of India AIR 1962 Supreme Court 814. Subsequent decision of the Hon’ble Apex Court have also followed the said decision. It is also clear from those decisions that onus lies on the OPs to prove the pre conditions as available u/s 45 of the Insurance Act. In the instant case, the onus lies on the OPs to prove the pre-existing disease. Therefore, the proposal form is required to be gone through at first because the policy in question has been admitted by both the parties. The certificate of the doctor who has treated the policy holder before the proposal form is as follows:-
“xxx xxx xxx
Certified that Mrs Sandhya Roy, Staff Nurse, CHC Jatni, Dst.Khurda was suffering from AC.PID & Adenamyasis Imemyhagia And was under treatment as an OPD patient vide OPD Regd. No. 592/dt.29.7.04 and advised for rest from 30.7.04 to 29.8.04.
She is fit to resume duty from 30.8.04.”
Sd/-
Specialist O & G
C.H.C., Jatni, Dist - Khurda.”
Para – 11 of the proposal form duly filled in by the policy holder is as follows:-
“xxx xxx xxx
11. (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.
(iii) Have you remained absent from place of work on grounds of health during the last 5 years? No
(iv) Are you suffering from or have you ever suffered from ailments pertaining to liver, stomach, Heart, Lungs, Kidney, Brain or nervous system? No
(v) Are you suffering from or have you ever suffered from Diabetics, Tuberculosis, High Blood Pressure, Low Blood Pressure, cancer, Epilepsy, Hernia, Hydrolysis, Leprosy or any other disease? No
(vi) Do you have any bodily defect or deformity? No
(vii) Did you have ever any accident or injury? No
(viii) Do you use or have you ever used Alcoholic drink, Narcotics, any other drugs, Tobacco in any form? No
(ix) What has been your usual state of health? Normal
(x) Have you ever required at present availing/undergoing medical advice, treatment or tests in connection with Hospitals “B” or an ÄIDS” related condition? No”
11. On the comparison of the proposal form and the medical form, it clearly shows that the complainant has suppressed the pre-existing disease. In such circumstance, the OPs have amply proved that the policy holder has suppressed the material fact or gave misstatement or made fraud upon the OPs to purchase the policy in question. Learned District Forum after analysising the case has gone through the said finding. There is nothing to interfere with it and as such the impugned order is confirmed and 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.
