Heard the 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 case  of the complainant, in nutshell  is that  the complainant  is the nominee  of Kalinga Kumar Behera who has purchased the life insurance policy on 28.09.2009 from the OP while the policy was in existence. Kalinga Kumar Behera died due to “Massive Hematemesis with hypovolemic shock”  on 29.01.2011. Thereafter the claim was made but the OP repudiated  the claim stating that Kalinga Kumar Behera has suppressed the material fact of his pre-existing disease and  withholding necessary informations which  are material fact to be disclosed.  Therefore, challenging said repudiation, the complaint was filed.

 4.      The OP  filed written version stating that after getting the claim  from the complainant, they have investigated the matter  and found that  Kalinga Kumar Behera died due to Massive Hematemesis with hypovolemic shock  and he was habitually consuming the liquor  and the complainant was on leave for some times. Therefore they found that the complainant has suppressed the material fact to disclose same in the proposal form, thereby they have repudiated the claim.   Thus, they have no deficiency in service on their part.

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

                      Xxxx         xxxxx           xxxxxxx

                      “In the result, the complaint is allowed and the Op-Insurance Company is directed to settle the claim of the complainant in terms of insurance policy within two months from the date of receipt of copy of this order. The complainant is also entitled to costs which are quantified at Rs.3000/- (Rupees three thousand) only”.

6.               Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the material available on record. According to him they have filed the written version stating that the complainant was suffering from pre-existing disease but he has not mentioned  so in the proposal form. Further he submitted that the insurer has suppressed  about leave he has taken earlier while in the service and he has suppressed same also in the proposal form. Learned District Forum ought to have considered all the facts and law involved in this case. Since, he has filed the documents in appealate stage he seeks to remand the matter to the learned District Commission for fresh disposal.  Therefore, he submitted that the impugned order should be set-aside 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  Kalinga Kumar Behera has purchased the life insurance policy from the OP on 28.09.2009 but he expired on 29.01.2011. It is also not in dispute that the complainant has made the claim and the OP has made investigation. It is settled that the complainant has to prove his case and deficiency in service on the part of the OP.  Undoubtedly  Hon’ble Supreme Court in  Mithoolal Nayak -Vrs-Life Insurance Corporation of India reported in 1962 AIR 814   observed   that the onus lies on the  OP to prove the following pre-conditions  to attract Section 45 of  the Insurance Act,1938   while they call the policy in question. These conditions are given below:-

     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.          Further it is held that the insurer has got onus to prove that the policy holder was suffering from pre-existing disease  and suppressed the material fact. With due regard  to the decision  and when the insurer-Op is to discharge his duty, we  have to examine the documents filed by the OP-appellant. Learned counsel for the appellant relied on the medical report, case summary produced before us and we have gone through same and  we find that the doctor concerned has not  examined the insurer but he had  copy of report of bed ticket. While the insured was admitted and finally died in 2011, this  is not the document to prove any suppression  of material fact by the insured because the doctor concerned  and staff  prepared the case summary to support same.

10.       Learned counsel for the appellant relied on Annexure-7 to show that insured has taken sick leave. The abstract   of such service  does not disclose  that he has taken leave  for same period in the year 2009 or 2010. Moreover, such report cannot be relied unless the leave  application  is produced. It is true that the insured has answered  in the proposal form negative with regard to any disease  or any other medical intervention to his health condition. Therefore, we are of the view that the Op even if  filed the documents did not prove the pre-existing disease or any suppression of material fact by the insured. Thus,, we are of the opinion that learned District Forum has rightly assessed the material on record.

Therefore, we are not inclined to interfere with the impugned order. Hence, it is affirmed and appeal being devoid of merit stands dismissed. No cost.

Free copy of the order be supplied to the respective parties or they may download same from the confonet or website of this  Commission to treat same as copy of order received from this Commission.   

             DFR be sent back forthwith.