Heard learned counsel for the appellant. 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 unfolded story of complainant, is that the complainant ‘s husband had purchased a LIC policy from OP on 12.12.2012 for a term of 10years for sum assured of Rs.10,88,000/-. It is alleged inter-alia that the deceased has paid 1st premium on 12.12.2012. It is alleged by the complainant that the husband of the complainant died on 04.06.2013 out of cardiac arrest in Sabita Nurshing Home,Cuttack. After collecting all papers the complainant being nominee filed the claim before the OP No.2. But the OP No.2 rejected same stating that the policy holder had suppressed the pre-existing disease of chronic kidney disease (CKD). Being aggrieved by such repudiation, the complaint was filed.
4. The OP admitted about purchase of the policy from them but during investigation they found that the policy holder was hospitalized from 10.06.2013 to 13.06.2013 but he has not filled up the proposal form having admitted about such hospitalization. Since the policy holder has suppressed the material fact of his pre-exiting disease or hospitalization they have repudiated the claim U/S-45 of the Insurance Act. 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:-
Xxxx xxxx xxxx
“ The complaint is allowed on contest. The OPs are directed to pay the death claim of assured sum of Rs.10,88,000/- (Rupees ten lakhs eighty thousand) only to the claimant/ complainant within two months from the date of receipt of this order failing which the claimant/complainant entitled to get interest @ 8 % per annum till realization of the claim. There is no cost.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not going through the material on record produced by the OP where under the complainant was hospitalized in SCB Medical College & Hospital,Cuttack from 10.06.2013 to 13.06.2013 for his suffering from chronic kidney disease. The proposal form relied upon by the OP also shows that the policy holder has not disclosed about such hospitalization. Since, he has suppressed the material facts of the pre-existing disease the OP has repudiated the claim. Learned District Forum without application of judicial mind to all the facts and law passed the impugned order which is not sustainable in law. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
7. Learned counsel for the respondent submitted that the documents produced by the learned counsel for the appellant is not a correct document because the policy holder was never hospitalized. The policy holder being a doctor is well aware of his ailment and accordingly he has filled up the proposal form. Moreover, he has challenged the copy of bed head ticket which does not disclose the name of the hospital and they did not disclose the source of information. Therefore, he submitted that learned District Forum has rightly passed the impugned order, which should be confirmed.
8. Considered the submission of learned counsel for the respective parties, perused the DFR and impugned order.
9. It is admitted fact that the husband of the complainant had purchased the LIC policy for a period of 10 years commencing from 12.12.2012 for sum assured of Rs.10,88,000/-. It is also not in dispute that the policy holder died on 04.06.2013. It is also not in dispute that the claim was filed but it was repudiated by the OP on the ground that the complainant has got pre-existing disease. He cited 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. 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. With due regard to the aforesaid decision, It is clear that the onus lies on the policy holder to prove his proposal form duly filled in, so also the onus lies on the OP to show that the policy holder has got the chronic kidney disease(CKD) being hospitalized from 10.06.2013 to 13.06.2013. Learned counsel for the appellant submitted that he has produced the copy of the bed head ticket and the report of the investigator. We have gone through same. We found from the bed head ticket that the policy holder had been admitted for chronic kidney disease but there is endorsement with regard to death on 04.06.2013 which is not a fact. Further it is found from the document that no name of the hospital is written on the bed head ticket. It is also not found that the bed head ticket has been issued by the Medical Superintendent of the SCB Medical College & Hospital,Cuttack. When the document in question is doubtful and source of information is also not reliable said document can not be a ground to reject the claim. On the otherhand, the Op has failed to discharge his onus.
11. Since, the OP has not proved the pre-existing disease, we do not find any reason to interfere with the impugned order and as such the impugned order is confirmed.
The appeal sans merit and as such 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.
