Heard the learned counsel for the appellant.

2.              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.       

3.              The unfolded story  of the complainant is that the complainant’s son  namely Rashmi Ranjan Nayak has purchased  policy under children money back assurance plan without profit from  OP No.2 for sum assured of Rs.50,000/- commencing from 28.11.2001 and the date of maturity was 28.11.2017. It is stated that child Rashmi Ranjan Nayak unfortunately died on 09.05.2004. It is alleged inter-alia that after death of life assured the complainant being nominee made claim before the OP but they repudiated the claim U/S-45  of the Insurance Act stating that Rashmi Ranjan Nayak has medical element prior to filling up the proposal form. Challenging repudiation as deficiency in service on the part of the OP, the complaint was filed.

4.              The OP also filed the written version stating that the complaint is not maintainable. They have also stated that while filling up the proposal form, the policy holder has got disease hemophilia detected in 1997 but while filling up the proposal form, complainant has filled up clause-14 answering all questions as ‘No’ with regard to child’s health condition. Therefore, it was found that he has suppressed the material fact, for that they have repudiated the claim. Therefore, they have no deficiency in service on the part of the OP.  

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

                  Xxxxx              xxxxxxxx              xxxxxx

“No satisfactory evidence has been produced by the learned counsel for the OP to support their pleadings and for that we hold that when the life assured was thoroughly examined by a medical officer duly engaged by the Ops and after examination the policy has been accepted, the Ops are now stopped from saying that there was suppression of material facts on his health. This being deficiency in service, we direct the OP to make payment of the sum assured i.e. Rs.50,000/-, and cost of litigation Rs.500/- to the complainant within a span of one months from the date of receipt of this order. With this the case is disposed off.”

6.               Learned counsel for the appellant  and the concerned officer present today submitted that learned District Forum  has committed error in law by not considering the written version with proper perspectives. According to him there is clear record of SCB medical report to show that the deceased Rashmi Ranjan has  disease namely as Heomophilia but that fact has been suppressed while filling up the proposal form. Since, it has been  suppressed, they have repudiated the claim. Learned District Forum ought to have considered all those facts but illegally passed the impugned order. So, he submitted to set-aside the impugned order by allowing the appeal.

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

8.               It is admitted fact that complainant’s son Rashmi Ranjan Nayak has purchased policy under Children money back from OP No.2. It is also admitted fact that during currency of the policy the life assured died on 09.05.2004 due to illness. During enquiry they found that in 1997 said Rashmi Ranjan was treated for Heomophilia but he had suppressed  the material fact by filling up the proposal form on 28.11.2001. Normally the complainant is to prove the deficiency in service on the part of the OP but in view of the decision of Hon’ble  Apex Court, Mothoolal Nayak-LIC of India 1962 AIR 814,SCR Supl.(2),571, LIC of India-Vrs-Asha Goel(Smt.) and another 1(200) SLT 89(2001) 2 SCC 160 and P.J.Chacko and another-Vrs- Chairman,LIC of India and others AIR,2008 1 SC 321. The onus lies on the OP to prove the pre-ingredient as per Section-45 of the Insurance Act which are as follows:-

a) the statement must be on a material matter of 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.

9.              Section-45 of the Insurance Act also speaks that any repudiation of the claim or calling the policy in question must be passed within two years from the date of commencement of policy. Here, it is found that the policy commenced on 28.11.2001 but policy holder Rashmi Ranjan died on 09.05.2004. Therefore, the cause of action only arose on 09.05.2004 when death took place which is beyond two years from the date of commencement of policy. Due to non-obstanding clause of Section-45 of the Insurance Act no policy can be called in question beyond two years from the date of commencement on any ground. Besides, clause-14 of the proposal form is as follows:-

  (a)  Has the life to be assured suffered from any illness or disease ?

 If so give details                                                 No

© Has the life to be assured ever had an Electro cardiogram, X-Ray of Screening Blood, Urine of Stool Examination ? If so give details                          No

(d) Has the life to be assured ever been in any hospital, asylum or Sanatorium for cheekup, observation, treatment any operation? If so give details.       No                                                

10.     But the Annexure-1 in OPD record of Deptt. of Hepatology shows that child was attended for clotting disorder disease but he was advised to go to  show the doctor but never he was neither admitted  nor treated as indoor patient, of course he has been diagonised after 2001 with 45 % disability. Since, while filling up the proposal form, there is no any disease diagonised or he has suffered as any sort of  disease, the repudiation is otherwise illegal.

11.         In view of aforesaid analysis we are of the view that the Op has failed to discharge the onus by not proving the pre-existing disease of the child. Thus, we are of the opinion that learned District Forum has meticulously submitted and passed the impugned order rightly and nothing to interfere with it. The attendance of the officer is dispensed with.

               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 copy of order received from this Commission. 

                DFR be sent back forthwith.