Heard 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 Sankar Swain, the younger brother of the complainant had availed the postal life insurance policy and purchased same from the OP for sum assured of Rs.1,00,000/- commenced from 28.01.2014. It is alleged inter-alia that the policy holder died on 08.04.2014. Thereafter the claim was made. But the policy holder had suppressed the pre-existing disease while filled up the proposal form. Challenging the said repudiation of the claim, the complaint was filed.
4. The OP filed written version by submitting that the policy holder purchased the policy from the OP. After death of policy holder they have received the claim from the nominee who is complainant in this case. During investigation, they found that the policy holder was suffering from cardiac disease before filling up the proposal form. Therefore, he has suppressed the material fact and as such they have repudiated the claim U/S-45 of the Insurance Act,1938. So, there is no deficiency in service on the part of the OP.
5. After hearing both the parties, learned District Forum passed the following order:-
Xxxx xxxx xxxx
“The comsumer complaint is allowed against the opposite parties and directed the opposite parties to pay claim amount of the policy of Rs.1,00,000/- to the complainant within 30 days from the date of order and also directed the opposite parties to pay Rs.10,000/- to the complainant towards cost litigations.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him the policy holder was suffering from unknown disease prior to filled up the proposal form. He has filled up the proposal form without any knowledge of the OP or any knowledge of the concerned doctor. Learned District Forum ought to have considered all the facts and law involved in this case. Since, the judgment of the learned District Forum is not discussed properly, he submits to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that the OP has failed to prove his pre-existing disease suffered by him. So, he supports the impugned order.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. It is admitted fact that on 28.01.2014 the policy holder Sankar Swain had purchased the Postal Life Insurance Policy from the OP. It is admitted fact that Sankar Swain filled up the proposal form after which it was accepted. It is admitted fact that the policy holder died due to cardiac disease on 08.04.2014. No doubt the complainant has to prove his case. In view of the decision of Hon’ble Supreme Court in Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814,SCR Supl. (2) 571 and subsequent decision of Hon’ble Apex Court that the onus lies on the OP to prove the pre-conditions before calling the policy in question U/S-45 of the Insurance Act,1938. There are three pre conditions which are as follows:-
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. In view of the aforesaid decision, the insurer has got onus to prove the pre-existing disease of insured. In the instant case, health certificate has been proved by the complainant and the learned District Forum has clearly observed that the OP has not produced any documents to substantiate his case. We also do not find any medical report produced by the appellant to prove that the policy holder was suffering from pre-existing disease. It is only submitted by the learned counsel for the appellant that the diseased was suffering from cardiac disease much prior to filled up the proposal form but failed to prove same. Since, the insurance claim has not been settled, we are compelled to observed that the insurer has failed to discharge its duty.
11. In view of aforesaid discussion, we found no error in the impugned order and it is confirmed.
Therefore, appeal devoid of any 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.
