Heard learned counsel for the appellant on V.C.
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. Learned counsel for the appellant submitted that no DFR in this case is required due to facts and circumstances of this case. So he submitted to dispose of the matter on the materials available on record.
4. Learned counsel for the appellant submitted that the father of the complainant has purchased two policies on dtd.13.11.2006 and dtd.28.11.2006 for sum assured of Rs.50,000/- each. He further submitted that the insured died on 25.01.2007 in the hospital. Thereafter the claim was made by the complainant being nominee of the deceased. He submitted that the complainant has alleged that the claim was repudiated illegally even though his father had no fault and there was no any investigation properly by the OP.
5. Learned counsel for the appellant submitted that notice was issued to the OP. The OP appeared through the lawyer and asked for the adjournment because the investigation was going on to collect material to justify the repudiation of the claim. But the case of the OP further that the deceased has suppressed of the material facts of the pre-existing decease before filling up proposal form. Learned District Forum, without allowing any opportunity passed the impugned order.
6. Learned District Forum after hearing both the parties, passed the following order. The operative portion of the impugned order is as follows:-
Xxx xxx xxx
In the present case, there is no evidence to show that the complainant is not son/nominee of the policy holder and ther4e is no misrepresentation regarding the health condition of insured and unjustified repudiation of claim is clearly deficiency in service. The Forum directs the OP No.1 & 2 to pay the sum assured amount Rs.50,000/- plus Rs.10,000/- as compensation in each policy to the complainant within 30 days from the date of this order.”
7. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not extending opportunity to the OP to file the written version and adduce evidence. According to him the onus lies on the OP to prove the pre-existing decease and the OP has got sufficient materials to prove the repudiation of the claim. Learned District Forum ought to have disposed of the case on merit by giving opportunity to the present appellant to participate in the hearing. Therefore, he submitted to allow the appeal by setting aside the impugned order and remand the case for denovo hearing.
8. Considered the submission of learned counsel for appellant, perused the impugned order and other materials on record.
9. No doubt the complainant is required to prove the deficiency of service on the part of the OP. It is admitted fact that the father of the complainant has purchased two policies. It is admitted fact that the insured died after few months of commencement of policies. No doubt the onus lies on the OP to prove the pre-existing decease of the insured. The impugned order does not dispute about any opportunity given to the OP to put forth his case. It is for the OP to prove the pre-existing disease of the insured for which he should be given opportunity of being heard instead of allowing the complaint.
10. In view of the discussions made above, the appeal is allowed by setting aside the impugned order. The matter is remanded to the learned District Forum with direction to dispose of the case after giving opportunity to the present appellant to file written version and adduce evidence by both the parties and dispose of the case on merit within 45 days from the date of receipt of the order.
Free copy of the order be supplied to learned counsel for the appellant or he may download from the website of the Commission or confonet and produce the same before the learned District Commission on 02.07.2021 and take further instruction.
