ORDER

Challenging the Order of the first respondent confirming the Order passed by the original authority, viz., the fifth respondent, rejecting the payment of money payable under the policy, the present Writ Petition has been filed.

2. Originally the petitioner's father has taken two policies bearing No.718506209 and 718506210 for a sum of Rs.one lakh and Rs.1,25,000/- respectively on 29.09.2009. Thereafter, the petitioner's father died on 04.01.2012 due to hyper tension. When the amount was claimed by the petitioner, the same was rejected by the third respondent by its Order dated 30.03.2013 on the ground that at the time of proposal, the insurer has suppressed certain facts of taking treatment in the hospital due to an accident. Accordingly, the claim has been rejected. The appellate authority without taking any independent decision, by a cryptic Order, just confirmed the Order of the original authority. As against which, an appeal has been filed before the fifth respondent. The fifth respondent partly allowed the claim and paid exgratia payment of Rs.50,000/-. While denying, it is specifically recorded by the fifth respondent that though there is suppression of the treatment of the insurer for certain fractures due to the accident, he has clearly recorded as follows :

a] The Agent under Policy knows him since for the past 5 years. But has not noted any past ailments.

b] No action has been taken against Agent or explanation called for.

c] Impression under CT scan report of Govt. Stanley Hospital, Chennai dated 19.12.2008 which says contusion in posterior segment of the right lobe of liver. This appears to be arising out of the accident only and there is no other disease of the liver. Even the physical parameters recorded at the time of admission on 03.12.2008 referred to, No history of LOC, vomiting, ENT Bleed, Seizure and the BP is recorded as 11/70.

d] High Blood pressure is nowhere proved by documents as on

29.09.2009 i.e., the date of proposal. The history of accelerated HT was recorded only one week prior to death.

e] Maturity sum assured has not been printed in the Policy document for both the policies.

e] There is no nexus between the accident and the cause of death.

and he had clearly recorded that there is no nexus between the accident and cause of death. By holding so, since the insurer has suppressed the fact of treatment for the accident, the claim has been rejected. As against which the present writ petition has been filed.

3. The learned counsel for the petitioner would submit that in the form, earlier treatment for fractures has not been stated and it would not amount to suppression of material facts. There is no nexus between the accident and cause of death, which has been admitted by the fifth respondent. In view of misstatement or suppression of facts which has no bearing on the risk of the insured, the claim cannot be rejected under the pretext of suppression of material facts. It is for the insurer to establish that such suppression is material one which had a bearing to the cause of death. However, the Insurance Company has not established the above fact. That apart, the Ombudsman has also clearly found that there is no nexus between the accident and cause of death. Hence, the rejection of the claim by the Insurance Company is not according to law and is liable to set aside. In support of his contentions, he relied on the judgment in M.Manimekalai Vs. Insurance Ombusman, Forum for Insurance Ombudsman, Fathima Akthar Court, represented by its Deputy Secretary reported in [2015] 7 MLJ 147.

4. Whereas, the learned counsel appearing for the respondents would submit that any facts which was suppressed, has to be construed as material facts. According to him, the contract of the insurance is based on good faith and if there is any misstatement or suppression of facts, the same result in rejection of the claim. According to him, the treatment in the hospital, prior to the proposal form has been suppressed. Therefore, th