Heard learned counsel for the appellants. None appears for the respondent.

2.        Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The case of the complainant in nutshell is that the complainant’s husband Nabina Sahoo had purchased a policy from OP No.1 for a period of 11 years for sum assured of Rs. 1,55,000/- on 15.1.2011. The proposal form was signed by the policy holder and the policy was also issued. It is alleged inter alia that the policy holder died on 12.5.2012. The complainant being nominee submitted claim form but it was repudiated on the ground that the policyholder has suppressed the information regarding of his age at the time of taking up of the policy. Challenging the same the complainant has filed the complaint.

4.        OPs filed written version stating that during enquiry, it is found that the policy holder deliberately suppressed material fact relating to his date of birth for which they have invoked section 45 of the Insurance Act, 1938 and called the policy in question. There is no deficiency in service on their part.

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

                             “xxx   xxx   xxx

            The consumer complaint is allowed on contest against the OPs. The repudiation letter vide Annexure – 6 of the death claim made by the complainant of her husband is hereby set aside. The OPs are directed to settle the death claim made by the complainant in her favour and the amount so settled together with compensation of Rs.20,000/- and litigation cost of Rs.5000/- be paid to her or they are directed to pay Rs.1,55,000/- which is the assured value of the insurance policy together with all allied benefits and interest @ 8% per annum to the complainant from the date of the claim till realization of the same together with the amount of compensation and litigation cost as indicated above. This order shall take effect within a period of 45 days of receiving the copy of this order.”

6.        Learned counsel for the appellants submitted that the learned District Forum committed error in law by not considering the written version with proper perspectives. According to him any suppression of material fact would entitle the insurer to call the policy in question u/s 45 of the Insurance Act, 1938. He also submitted that learned District Forum has erred in law by relying upon Annexure – 2, the document containing date of birth issued by the Headmaster and by rejecting the Pan Card and Voter Id which were  relied by the appellant. He submitted to set aside the impugned order by allowing the appeal.

7.        Considered the submission of learned counsel for the appellants and perused the DFR including the impugned order.

8.        It is settled in law that the complainant has to prove her case and deficiency in service on the part of the OPs. Since the policy has been purchased in 2011 and it was revoked on 1.3.2014 the unamended provision of section - 45 of the Insurance Act, 1938 would apply. It is not in dispute  whether the insured has suppressed the pre-existing disease and making false statement.  In the decision of Mithoolal Nayak vrs. Life Insurance Corporation of India AIR 1962 Supreme Court 814, it has been held by the Hon’ble Apex Court which is as follows:-

                             “ xxx   xxx  xxx

The three conditions for the application of the second part of Section 45 are

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.        With due regard to the decision, it can be safely observed that within two years of  commencement of policy the insurer have right to revoke the policy as per unamended Section 45 of Insurance Act, 1938, and onus lies on the insurer to prove all the ingredients before calling the policy in question within said two years.  It is also clear from the above decisions that the insurance contract is a contract  uberima fides i.e. utmost good faith and the  policy holder is supposed to inform all materials while filling up proposal form. Any doubt to call the policy in question, the onus lies on the OPs to refer the claim. Second Proviso to Section- 45 of Insurance Act, 1938 is as follows:-

                             “xxx   xxx   xxx

               Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.”    

The provision is clear to show that even if there is any mistake in the proof of age, the insurer cannot call the policy in question. However, the learned District Forum has  assessed the materials on record at Para – 5 of the impugned order which is as follows:-

                             “xxx   xxx   xxx

The learned counsel for the complaint has vehemently opposed the stand taken by his counterpart in this case. It is fairly submitted that when the school certificate reflecting the age of the deceased policy holder has been filed, other documents cannot be taken into consideration to negative the effect of such certificate issued by the competent authority. Law is well settled that in absence of horoscope, it is the school certificate issued by the competent authority which comes first in order of preference to prove the age of a particular person. In the instant case Annexure – 2 has been issued by the competent authority on the basis  of the admission register of the school and the contents of Annexure – 2 have not at all been called in question by the OPs in any manner. It is also equally well settled that Annexure – C & D which are the PAN card and Voter Identity card of the insured are not documents by themselves to prove his age. In view of the above and in absence of anything to the contrary, the date of birth of the deceased policy holder as recorded in Annexure – 2 cannot be view with suspicion. Except the sole ground of manipulation/suppression of age of the deceased policy holder, there is apparently no other ground raised by the OPs for repudiation of the death claim made by the complainant.”

10.      When the proposal form contains the date of birth as per the school admission register, it cannot be said that the policy holder has suppressed the material fact. Apart from this, it is well settled that neither the Pan Card nor Voter Id is the conclusive proof of date of birth of a person. In the instant case, we are of the view that learned District Forum has taken the correct view and discussed the materials on record.

11.      Be that as it may, neither the proviso to Section – 45 of Insurance Act, 1938 permits the insurer to call the policy in question on the ground that the policy holder quoted the incorrect age nor the incorrect date of birth has been proved by the OPs while evaluating the evidence adduced by both sides as per the discussion made above.

12.      In view of aforesaid discussion, we are of the view that the impugned order passed by the learned District Forum is affirmed and there is nothing to interfere with the finding of the learned District Forum.

13.      The appeal stands dismissed. No cost.

           DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.