Heard learned counsel for the appellant and none appears for the respondent. .

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 case of the complainant in nutshell is that complainant’s husband purchased a “Jeevan Saral” policy from the opposite party for a sum assured at Rs. 5,00,000/-The said policy commences from 31.3.2010. The Policy Holder was paying the instalments regularly. During the currency of the policy, the policy holder died on 28.2.2013 leaving behind the complainant, the widow and two unmarried daughters. Thereafter, the claim was filed. After necessary enquiry, the opposite party repudiated the claim of the complainant  as he suppressed his pre-existing disease such as Dm, HTN, CKD-V and MHD.    Challenging the said repudiation complaint case was filed.

4.      The opposite party filed written version stating that Policy Holder has purchased the Policy on  28.3.2010. He died on 28.2.2013 . After receiving the claim, the opposite parties made necessary enquiry and found that the Policy Holder while filling up the forms, has suppressed the material fact about pre-existing diseases of Diabetes Mellitus and Hypertension. Since the opposite party submitted that the there is breach of contract, they have repudiated the claim of the complainant. There is no deficiency in service on the part of the opposite party.

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

“ The complaint is allowed. O.Ps jointly and severally are directed to pay the Death Benefit sum assured i.e. Rs. 5,00,000/- (Rupees five lakh) and interest @ 9% from 13.2023 till date the amount is paid and Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant within 45( forty five) days of receipt of this order failing which the O.P. shall have to pay in addition  an interest of 9% per annum till actually the amount is paid in course of law. …”

6.      Learned counsel for the appellant submitted that learned District Forum committed error by not considering the written version filed by the opposite parties with its proper perspectives.  According to him, the proposal form duly signed by the complainant clearly shows that he was not suffering from any disease of Diabetes Mellitus and Hypertension or any other disease. But during investigation, they found that prior to proposal form was filled in, he was suffering from T2Dm, HTN, CKD-V and MHD. Since he has suppressed the material fact under Section 45 of the Insurance Act, they have repudiated the claim. Learned District Forum failed to  accept the fact and law for which the same should be set aside by allowing the appeal.

7.      Considered the submissions, perused the DFR and the impugned order.

          It is admitted fact that the husband of the complainant has purchased the “Jeevan Saral” policy and he has also filled up the proposal form where he has denied the previous diseases.

8       The opposite party has filed written version stating that during enquiry they found that the complainant was suffering from diseases like T2Dm, HTN, CKD-V and MHD since to 10 to 15 years back.

9.      In the case of Honble Supreme Court of India in Mithoolal Nayak v. Life Insurance Corporation decided on 15.1.1962 where their Lordship observed that for the purpose of Section 45 following three provisions has to be fulfilled if at all Section 45 should be applied.

          (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.

       Further, the observation of their Lordship is that the opposite party who claims to have  repudiated the claim has got onus to discharge that the policy holder has suppressed the material fact.

10.    Before going to decide the issue, we have to look out whether Section 45 of the Insurance Act  find that the date within forty five days applies or not. 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.”

11.    The aforesaid provision is very clear to show that  repudiation  of claim on any ground can only be effected within two years from the date of commencement of the policy. In the instant case, admittedly the policy commence on 18.2.2010, but the death took place on  28.2.2013. Since the death took place after two years of commencement of policy, under no circumstance the same can be called in question on any of the pre-condition  provided under Section 45 of the Act. Therefore, repudiation of the claim under Section 45 of the Act is illegal and improper by the opposite party.

12.    In view of the aforesaid discussion, we are of the view that that the repudiation  being bad in law, the same amounts to  deficiency of service on the part of opposite party. Thus, the findings of impugned order although reached out with other reasons which we have no comment, but we only found that the findings are affirmed. It is well settled in law that the appellate authority and original authority may reach out the same conclusion but on different reasons.

13.    Learned counsel for the appellant submits that the impugned order shows that interest will  be reckoned from the date of  repudiation  but it should be from the date of pronouncement  of the order by the learned District Forum as held by this Commission in other cases. We hereby modify the order directing payment of the entire sum assessed by O.P. to Complainant  within a period of 45 days from today failing which impugned order will remain unaltered.

14.    The appeal is disposed of accordingly. 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.