Heard the learned counsel for the appellant.
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’s elder sister had purchased a LIC policy commencing from 28.09.2004 for sum assured of Rs.50,000/-. She died on 27.08.2005 suddenly. The complainant being nominee informed the OP for settlement of the claim. The OP repudiated the claim stating that she had Diabetis mellitus prior to filing of proposal form and she has not disclosed such fact in her proposal form. Challenging such repudiation the complaint was filed.
4. The OP filed written version admitting about purchase of policy by policy holder Saraswati Nag. She also admitted that she died on the aforesaid date but they averred in the written version that Saraswati was suffering from pre-existing disease for which she has been regularly visiting the District Headquarter Hospital. But the proposal form is silent about such disease being suffered by the policy holder. So, due to suppression of material fact they have repudiated the claim. There is no any deficiency in service on the part of the OP.
5. After hearing both the parties, learned
District Forum passed the following order:-
Xxxxx xxxxxxxx xxxxxx
“The Ops are jointly and severally liable to pay the sum assured Rs.50,000/- alongwith other benefits under the policy with interest @ 6 % P.A. from the date of death i.e. 28.8.2005, till payment. Further the Ops are directed to pay cost of Rs.500/- to the complainant. Accordingly, the case is disposed of.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not going through the written version filed by the OP with proper perspectives. According to him the regular visit for the complainant to the hospital clearly shows that she was suffering from pre-existing disease. She having not mentioned about such fact in her proposal form, they called the policy in question U/S-45 of the Insurance Act. Learned District Forum ought to have considered such fact and law. Hence, he submitted to set-aside the impugned order by allowing the appeal.
7. Considered the submission of the learned counsel for the appellant, perused the DFR and impugned order.
8. It is admitted fact that the policy holder Sarawati had purchased LIC policy for sum assured of Rs.50,000/- from the OP. During currency of the policy, she expired. In view of the decision of the Hon’ble decision of Mithoolal Nayak-Vrs-Life Insurance Corporation of India in 1962 AIR 814,SCR Supl. (2) 571 and same being followed by other decision of Hon’ble Supreme Court, it has been settled in law that
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.
It is also settled in law that the onus lies on the OP to prove pre-existing disease of policy holder as claimed by the OP. The DFR does not disclose about any document produced by the OP to show that the illness of the policy holder was there prior to filling of proposal form. Moreover, it is only contended by the learned counsel for the appellant that they have got OPD register to show her visit to the hospital but he has not clarified for what disease she was visiting to Dist Headquarter hospital. Therefore, we are of the view that the OP has not proved any pre-existing disease of the policy holder. As such we are of the opinion that the learned District Forum has passed the impugned order rightly but there is nothing to interfere with it. A t the same time, it appears that learned District Forum has awarded interest @ 6 % payable alongwith the sum assured from the date of death of the policy holder. In fact Section-14 of the Act does not disclose to pay any interest. However, when it is proved that the complainant is entitled to sum assured of Rs.50,000/-,the interest would be payable from that date. Hence, the OP is directed to pay sum assured of Rs.50,000/- with 6 % interest from the date of impugned order till date of payment and rest of the impugned order will remain unaltered.
Appeal is allowed. 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.
