ORDER
J.K. Mehra, Member, J.
1. In this case, LIC has challenged the judgement of the State Consumer Disputes Redressal Commission, Delhi dated 25.11.94 whereby the State Commission by majority decision had allowed the complaint of the widow of the deceased and ordered payment of Rs. 1,00,000/- with interest @ 18% per annum form the date of filing of the complaint i.e. 31.12.91 till date of payment together with damages amounting to Rs. 10,000/-. The President, however, did not agree with this decision and returned the finding of suppression of facts and dismissed the complaint.
2. Two insurance polices were taken by the deceased, one for Rs. 75,000/- and another for Rs. 25,000/- bearing nos. 110405187 and 110405184 respectively. Both are dated 15.5.87 it was not disputed before us that the policies were issued after a medical examination by the doctor of the LIC and it was after full satisfaction that the appellant had issued the policies. The deceased insured died in January, 1990 i.e. more than two years after taking the policies. It is pointed out that cause of his death was kidney failure. Appellant L.I.C. repudiated the claim on the basis that the deceased had concealed material facts at the time of taking of the policies. Before we proceed any further, it would be appropriate to notice the provisions of Section 45 of the Insurance Act, which is as follows:-
“45. Policy not to be called in question on ground of mis- statement after two years:- No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy-holder knew at the time of making it that the statement was false (or that it suppressed facts which it was material to disclose).”
3. In the present case more than two years had elapsed between the date of issue of policy and the date of death. Therefore, the policy not be called in question, by the insurer on the ground that the statement made in the proposal form or any report of the medical officers, or referee or friend of the insured or in any other document of the company leading to issue of policy, was inaccurate or false unless the insurer shows that such information was on a material matter and that it was fraudulently made by the policy-holder. The onus of proving all these facts lies with the insurer. Insurer has merely relied upon two certificates of hospitalisation of the deceased. One when he was hospitalised in Ganga Ram Hospital from 18.9.89 to 5.10.89 for treatment of hypertension and thereafter he was hospitalised in Batra Hospital in January, 1990 where he died. In the form, which was supplied by the LIC to the Hospital Authority, it is mentioned that patient had suffered from hypertension for 14 years. No attempt was made to summon any evidence from any of the hospitals or examine anyone who might have seen the history sheet recorded at the time of admission each of the hospital. The LIC authorities have also withheld the report of their doctor which is submitted at the time of issuing the policy. Both the hospitalisation were subsequent to the issue of policies. No attempt has been made to ascertain as to whether deceased was treated earlier. The majority has rightly come to the conclusion that the onus which was on the LIC has not been discharged by it on account of their failure to adduce proper evidence. Therefore, contention of 14 years history remained unproved. The least LIC was to do to serve interrogatory on widow requiring her to answer the interrogatory on the spot. In addition to that no doctor has been examined nor any affidavit of any medical expert has been produced to show that the deceased was suffering from kidney failure or of the high blood pressure which was of the nature which has indirect nexus with the kidney failure, the disease which caused his death. Considering all these facts and the facts that prevented LIC for proving this case we are not inclined to disturb the majority view and infact we do not agree with the President of the State Commission. His view that the detailed evidence cannot be led in summary proceedings, was not correct. There was absolutely nothing to prevent parties from leading evidence on affidavit and it was not proper on the part of the dissenting President to direct the Complainant to seek remedy in civil court. In the light of above discussions, this appeal is dismissed.