Heard learned counsel for  both the sides.  None appears for the respondent.

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  has purchased the policy bearing No.583821222 for sum assured of Rs.1,00,000/-  which commenced on 28.01.2003. He submitted  that the policy holder died on 18.12.2005. The   complainant allegedly filed the claim but it was repudiated by the Op as he has suppressed  the previous illness of cancer while filled up the proposal form. The complainant alleging about repudiation  filed the complaint.

4.            The OP     filed the written version stating  that after receiving the claim  has deputed the  investigator who found that the policy holder has suppressed the material facts of his pre-existing disease and he has also suppressed about his previous accident. Therefore, they have repudiated the claim. According to him the insurance contract is based on ubrima fides. Therefore, they have no deficiency in service on their part.

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

               Xxxx              xxxx              xxxx

                                “ The opp.parties are directed  to pay the claim amount in respect of policy No.58381222 and to pay compensation of Rs.5,000.00 (Rupees Five thousand) and Rs.1,000.00 (Rupees one thousand) towards cost of litigation. Carryout  the above order within one month after receipt of this order.

          The case is allowed  accordingly.”

6.               Learned counsel for the appellant submitted that    learned District Forum  without considering the written version has allowed  the complaint.  According to him they have proved the pre-existing disease  and as such the impugned order is illegal and improper. Therefore, 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 the policy   was commenced on 28.01.2003 and the life assured died on 18.12.2005. Section-45 of the Insurance Act,1938 as pre-amended is 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.

9.                   The aforesaid provision is clear to show that the policy in question can not be called after lapse of two years from the date of commencement of the policy. In the instant case when policy holder died after two years of  the policy commenced. Section-45 of the Insurance Act can not be pressed into service by the insurer. Therefore, the contention of the learned counsel for the appellant has no substance. When Section-45 of the  Insurance Act will not be  applicable, the question of suppression of material fact does not arise.

  10.        In view  of aforesaid discussion, we confirmed the impugned order and appeal being devoid of merit  stands dismissed.  No cost.

 11.            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.