Heard learned counsel for the appellant virtually.
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 complainant has purchased the policy bearing No.597107915 on 09.08.2014 for sum assured of Rs.1,00,000/- for a term of 22 years. It is alleged inter-alia that on 14.09.2015 she having got abdomen pain got admitted in Sum Hospital but died on 07.10.2015 complainant filed the claim before OP. But the OP repudiated the claim on the ground that the policy of the complainant has lapsed due to non-payment of the premium within grace period during the 2nd quarter. OP also failed to pay the paid up value to the complainant. So, alleging deficiency of service, the complaint is filed.
5. The OP filed written version admitting about purchase of policy by the policy holder but averred that in the month of August,2015 the premium was due to be paid but it was not paid even within grace period of due date in August,2015. Since, premium was not paid, the policy was in lapse condition at the time of death of the policy holder. Apart from this OP averred that the complainant –policy holder is not entitled to get the paid up value as the premium has not been paid for three years consecutively. Further OP has taken plea that they have repudiated the policy in question as the policy holder has suppressed the pre-existing diseases of her suffering from cancer. Therefore, they averred that they have no deficiency of service on their part while repudiated the claim.
6. After hearing both the parties, learned District Forum passed the impugned order in the following manner:-
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“ The case of the complainant is allowed on contest against the Opp.Party. The Opposite party is directed to pay the sum assured of Rs.1,00,000/- to the complainant in respect of Policy No.597107915 lying in the name of late Saraswati Rout together with interest there of at the rate of 6 % per annum from the date of repudiation i.e. 15.1.2016 till the date of actual payment. Under the facts and circumstances of the case, the Opposite Party is further directed to pay Rs.5,000/- towards mental agony and harassment to the complainant. The above order shall be carried out within 30 days from the date of receipt of this order. Parties are to bear their own cost.”
7. Learned counsel for the appellant submitted that learned District Forum committed error in law by not going through the written version of the OP with proper perspectives. According to him, by the time of death of the policy holder occurred, the policy has been already lapsed because of non-payment of premium even within the grace period of 2nd quarter. Learned District Forum ought to have considered such fact.
8. Learned counsel for the appellant submitted that the policy holder has suppressed the material facts of pre-existing disease because he has violated the contract of insurance. Learned District Forum ought to have considered this fact. So, he submitted to set-aside the impugned order by allowing the appeal.
9. Considered the submission of the learned counsel for the appellant, perused the DFR and impugned order.
10. It is true that the complainant is required to prove the deficiency of service on the part of the OP. It is admitted fact in this case that the policy holder being the wife of complainant has purchased the policy from the OP for sum assured of Rs.1,00,000/-. It is also not in dispute that the policy holder has paid the premium till August,2015 but did not pay the premium for the month of August,2015. Even in the month of September,2015 which is grace period the premium was not paid, of course due to hospitalization and death of policy holder on 07.10.2015. It is stated by the OP that the policy holder while making payment of 1st premium and 2nd premium had also made delay. However, the OP has accepted the premium amount on 09.08.2014 and also next premium on 23.06.2015. When the OP has accepted the premium even if after grace period in the previous occasion, the acceptance of premium just after 28 days of grace period of the premium payable in August,2015 can not be ground to repudiate the claim. When the death of the policy holder has occurred, the policy even if in lapse condition because of non-payment of the premium in grace period, can not a ground to refuse same. As per policy condition in case of death, the policy will not lapse and it may continue for 5 years from date of commencement of the policy by making payment of the premium including arrear by reviving same. In such circumstances, the repudiation of claim on that ground by the OP is not tenable.
11. The OP has taken plea that the policy holder has got pre-existing disease of cancer. As per the decision of Mithoolal Nayak-Vrs-Life Insurance Corporation of India in 1962 AIR 814,SCR Supl. (2) 571 and same being followed by other decision of Hon’ble Supreme Court, it has been settled.In view of the above decision the onus lies on the OP to prove the repudiation of claim on the ground of mis-statement or mis-representation or suppression of material fact as the case may be. In the instant case, no evidence is adduced by the OP to show the pre-existing disease of the policy holder, repudiation of claim on that ground is deficiency of service on the part of the OP.
12. On perusal of the impugned order it appears that learned District Forum has dealt all the issues and held that complainant is entitled to sum assured. Therefore, there is nothing to interfere with the impugned order which is confirmed.
Consequently, the appeal stands dismissed. 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 if copy of order received from this Commission.
DFR be sent back forthwith.
