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 unfolded story of the complainant is that the complainant purchased Medi Claim insurance policy namely “Hospitalization and Domiciliary Hospitalization benefit  policy” from the OP for himself, wifeMrsPratima Sarangi,  daughter Amrita Satpathy and son AbhishkSatpathy of Rs.1,80,000/-, Rs.1,50,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively. The policy was valid from 3.4.2006 to 2.4.2007. It is alleged inter alia that Pratima Sarangi fell ill in September, 2006 being suffered from back problem and she has undergone Gynecological operation by Dr.P.C.Mohapatra. Since the pain increased, she was admitted in the West End Hospital and on 4.10.2006 she has undergone operation by three doctors. After discharge, she filed the claim before the OP  whorejected the same saying that there is preexisting disease to which she has suppressed at the time of filling up of the proposal form. Being aggrieved, complainant filed the complaint.

4.      OPs filed written version stating that they have issued medi claim policy. The complainant has suppressed the material fact with regard to pre-existing disease ofPratima Sarangi. Therefore, they repudiated the claim.  So, there is no deficiency in service on the part of the OP.

5.      After hearing both the parties, the learned District Forum was pleased to dismiss the consumer complaint.

6.      Learned counsel for the complainant/appellant submitted that the learned District Forum dismissed the complaint without any basis because she has ample evidence to show that she has no any pre-existing disease. According to him the OP has not proved any document to show the pre-existing disease of Pratima Sarangi prior to proposal form filed by the complainant. He also submitted that learned District Forum should have applied judicial mind to the documents filed properly. Therefore, he submitted to set aside the impugned order by allowing the complaint.

7.      Learned counsel for the respondent - insurer submitted that   the learned District Forum has appreciated the materials on record properly. According to her the complainant has suppressed the material fact of previous ailment of his wife. She drew attention to the report of Dr.Ch.N.R.Nanda who made operation on 4.10.2006 in West End Hospital. She shows the medical  report and the certificate issued by Dr.Nanda where there is endorsement to the effect that Pratima Sarangi was suffering from back pain for one year prior to that. So, she submitted that  when she was suffering back pain one year prior to filling up of the proposal form, she suppressed the material fact and rightly the impugned order was passed dismissing the complaint.

8.      Considered the submission of learned counsel for the  partiesand perused the impugned order including the DFR.

9.      We have gone through the impugned order including the DFR. It is admitted fact that the complainant has purchased the medi claim policy from the OP for the  self, wife Pratima and two children. It is also admitted fact that Pratima Sarangi got pain in the back and operated by Dr.P.C.Mohapatra. It is also not in dispute that since the pain persisted, she got admitted in West End Hospital and Dr Nanda had attended her during operation. The report of Dr Nanda  shows that Pratima Sarangi has got back  problem since one year but no medical report has been produced by the OP. In the decision of MithoolalNayakvrs. Life Insurance Corporation of India AIR 1962 Supreme Court 814, it has been held by the Hon’ble Apex Court which is as follows:-

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The three conditions for the application of the second part of Section 45 are

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.”

10.    It is also held by the Hon’ble Supreme Court of India that onus lies on the insurer to prove the pre-existing disease and suppression of material fact. In order to discharge the onus, she also drew attention the Commission to the proposal form actually filled up by the complainant. When Pratima Sarangi is the patient and also the policy holder for sum assured is of Rs.1,50,000/-, the proposal form of Pratima Sarangi is necessary, instead the proposal form is filed being filed by complainant. However, we have verified the entire personal history of PratimaSarangi  and there is nothing found whether she has suffered from any back pain. Even if she has suffered from any back pain, no medical report has beenfiled except the report filedafterobtaining the policy.  From the record, we must observed that the OP has failed to establish the pre-existing disease of Pratima Sarangi.

11.    Learned District Forum after going through the entire material has not arrived the correct decision because of the observation made above. It must be remembered that the insurer has to discharge the onus only by placing the cogent evidence. The exact medical report available prior to filling up of the proposal form is necessity to decide the case. Be that as it may, in the instant case, learned District Forum has not understood the fact and law properly for which the  impugned order in question is liable to be set aside and it is set aside. It is found from the record that the complainant has already submitted the medical bill for an amount of Rs.1,55,000/- but sum assured is Rs.1,50,000/-. So we hereby allow the same and also directing the OP to pay Rs.1,50,000/- to the complainantwithin 45 days failing which it would carry interest at the rate of 12% per annum from the date of impugned order till payment is made. Since the complainant has been running with the case since 17 years, we award cost of Rs.30,000/- payable by the OP to the complainant within the above period.

12.    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.