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 the case of complainant, is that the complainant’s husband was policy holder under OP No.3 vide policy No.584448325 having sum assured of Rs.1,00,000/- commencing from 28.01.2002. It is alleged inter-alia that the complainant’s husband expired on 22.02.2003. After death of her husband claim was made. The OP assured to clear the matter but at last repudiated the claim by stating that the life assured has suppressed the material facts of his pre-existing disease. Challenging said repudiation as deficiency in service, the complaint was filed.
4. The OP filed the written version stating that the life assured has expired out of cardiac arrest on 22.02.2003. It is also averred that after receiving the claim application they have verified the documents and found that the policy holder had suppressed the material fact of suffering from diabetic, hyper tension and other diseases while filled up the proposal form. So, they have called the policy in question U/-45 of the Insurance Act,1938. 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
“ Hence, ordered that the complaint petition filed by the petitioner is allowed in contest. The O.Ps are directed to pay the sum assured money of Rs.1,00,000/- with accrued bonus as per the terms and conditions of the table No.14-15. The O.Ps are further directed to pay Rs.8,000/- towards cost of litigation within two months from the date of order failing which the entire amount shall carry interest @ 12 % p.a till the date of realization.”
6. Learned counsel for the appellant has urged that the learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him the policy holder was admitted in Kalinga Hospital on 17.02.2003 having suffered from diabetic and hyper tension and discharged from the hospital on 20.02.2023 and then died in his house on 22.02.2003. He further submitted that there is history of the treatment given in the medical attendance form of Kalinga Hospital where it is clearly mentioned that the policy holder was suffering from diabetic and hyper tension. When he has pre-existing disease, he ought to have mentioned same in the proposal form. Not only this but also he has taken the medical leave from his office. Since, he has suppressed of his pre-existing disease, learned District Forum should have applied judicial mind to the fact and law while passing the impugned order . Learned counsel for the appellant submitted that though they could not file documents before the learned District Forum and for that he has filed petition U/O-21,Rule-27 of CPC to accept the documents and accordingly the complaint petition should be dismissed. 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 well settled in law that the complainant has to prove his case and deficiency in service on the part of the OP. But in the case of Insurance Contract, while a policy has been called by the insurer U/S-45 of the Insurance Act, the onus lies on the insurer to prove the suppression of material fact by the insurer. For this we relied on the decision of Hon’ble Supreme Court in Mithoolal Nayak-Vrs-Life Insurance Corporation of India reported in 1962 AIR 814, where Their Lordship have observed in the following manner:-
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 Hon’ble Supreme Court of India while expounding the pre- condition in the above judgment have been pleased to observed that the onus lies on the insurer to prove the suppression of his pre-existing disease by the insurer while filled up the proposal form. After going through documents, we found that the policy has been issued commencing from 28.01.2002 and the no proposal form has been filed either of the party. However, learned counsel for the appellant filed the documents of treatment of Kalinga Hospital. We have gone through same. It appears that the policy holder was admitted in the Kalinga Hospital on 17.02.2003 and discharged on 20.02.2003. But the death certificate shows that the policy holder died on 22.02.2003. In this regard the OP submitted that after discharge he died in his house. However, on going through the hospital record it appears he was suffering from diabetic and hyper tension and these documents are filed after filling of the proposal form. The Deputy Superintendent of Kalinga Hospital has clearly mentioned on letter dtd.28.11.2003 that there was no any prolonged treatment history relating to Kalinga Hospital but he only admitted in the hospital due to diabetic and hyper tension. We went through Discharge summary where it is recorded Policy holder has diabetic and hyper tension prior to admission but not a single document is filed by the insurer to show her treatment by them. Since, the documents are not available to show his prolonged treatment in the Kalinga Hospital, there is no any sufficient proof of his treatment showing the pre-existing disease. Apart from this no employment record filed to show that the policy holder has suppressed the material fact of his pre-existing disease.
10. In view of the above, we are of the view that the Ops have failed to discharge their onus. Thus, the impugned order passed by the learned District Forum calls for no interference. However, learned counsel for the appellant submitted that the matter may be considered to reduce the cost of litigation. Considering so, we hereby confirmed the impugned order by modifying the operative portion of the impugned order by directing the OPs to pay the sum assured of Rs.1,00,000/- with accrued bonus as per terms and conditions of the policy to the complainant within a period of 30 days and pay litigation cost of Rs.4,000/- within the above period, failing which all the amount will carry 18 % interest from the date of the impugned order till date of payment. Since, the appeal has been disposed of stay order is vacated. The money deposited by the learned counsel for the appellant in this Commission to stay operation of impugned order be paid to the appellant.
The appeal is disposed of accordingly.
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.
