Heard the learned counsel for both the sides.
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 case of the complainant, in nutshell is that the complainant had purchased a life insurance policy on 20.07.2012 from the OP. But unfortunately she died on 09.07.2013. Thereafter the claim was made but it was repudiated on the ground that she has suppressed the information of her pre-existing disease while answering the questions raised in the proposal form. The complainant alleging such repudiation as deficiency in service filed the complaint case.
4. The OP filed written version stating that complainant’s mother has purchased the policy from them . But she has not filled up the proposal form with good faith i.e. ubrima fide. It is averred that she was suffering from cancer before purchasing the policy but he has suppressed the material fact while purchasing the policy. After investigation they have repudiated the claim. Therefore, they have no deficiency in service on their part.
5. After hearing both the parties, learned
District Forum has passed the following order:-
Xxxx xxxxx xxxxxxx
“ The OP-Insurance Company is liable to pay full assured amount with cost and also liable to pay reasonable amount for pain and suffering which has caused to the claimant by raising untenable defence, we estimate the same at Rs.20,000/- (Rupees twenty thousand). The OP-Insurance Company will pay Rs.6,20,000/- (Rupees Six lakh twenty thousand)only the insured amount alongwith interest @ 9 % per annum after three months from the date of death of the assured i.e. from 09.10.2013 till payment is made. The OP-Insurance Company shall pay Rs.20,000/- (Rupees twenty thousand) only for pain and suffering and cost of this complaint which we quantify at Rs.5000/- (Rupees five thousand) only.
All the above stated directions shall be complied by OP-Insurance Company within two months from the date of receipt of copy of this order.
Accordingly, the C.C.Case is disposed of.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version filed by the OP with proper perspectives. She drew our attention to document which is maintained by Acharya Harihar Regional Cancer Centre. She submitted that there is clearly mention for the visit to the AHCC before purchase of the policy. She also drew our attention to the proposal form vide Annexure-A. Therefore, she submitted that where there is clear suppression of pre-existing disease, learned District Forum ought to have considered all the facts and law involved in this case. Therefore, he submitted that the impugned order should be set-aside by allowing the appeal.
7. Learned counsel for the respondent submitted that the insured has not suppressed the material fact and it has been properly assessed by the learned District Forum in their impugned order. He submitted that complainant’s mother was admitted in the later part of 2012 and subsequently health condition become deteriorated and she died in the said institute. Since, there is no suppression of pre-existing disease, learned District Forum has passed the impugned order rightly. He supports the impugned order.
8. Considered the submission of learned counsel for the respective counsels, perused the DFR and impugned order .
9. No doubt it is settled principle of law that the complainant has to prove the deficiency in service on the part of the OP. But in the case of repudiation of the claim by the insurer, the onus lies upon them. For this we relied on the decision of Hon’ble Supreme Court of India in Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814, where Their Lordship have consistently observed that the onus lies on the OP to prove the following pre-conditions to attract Section 45 of the Insurance Act,1938 while they call the policy in question. These conditions are given below:-
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. With due regard to the aforesaid decision, the insurer has to prove the above three pre conditions before proving their plea. However, the entire onus lies on the OP to prove that the insurer has suppressed the pre-existing disease. The only point in this case,Annexure-4 whether proved the deceased suffered by the insurer. We have gone through that record,Annexure-4 which shows that the concerned insured was admitted and treated as OPD patient on 11.11.2012. Thereafter her treatment continued at AHRCC. The contention of the learned counsel for the appellant is that there is one date mentioned in the document with regard to her earlier treatment. She drew attention with certain entry dtd.17.10.2012 but it appears that the documents actually not done with the entry by the doctor. This short space entry with such observation definitely creates suspicion on the part of the insurer that she was suffering from cancer. This dubious act of the insurer is hazardous. The doctor’s report if all being manufactured, the insurer has to be penalized to the maximum extent. We are very afraid that the insurer, in order to defeat the claim of the insurer goes so far for manipulating the medical report.
11. In view of the aforesaid document the Annexure-4 definitely does not prove suffering of insured with cancer disease suffered by the insurer earlier to filling up the proposal form. The Annexure-1 the proposal form we found that same has been filled up correctly by the insurer.
12. In view of aforesaid circumstances, we hereby confirmed the impugned order and appeal having no merit 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.
