BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Monday the 13th day of October, 2008
C.C.No. 150/07
Between:
K. Ramulamma, W/o. Chinna Hanumanna,
R/o. Tadikenapalli Village, Kalluru Mandalam, Kurnool District. … Complainant
Versus
- Kotak Mahindra Old Mutual Life Insurance Limited,
11/12 Krishna House, Raghuvamsi Mills Compound, Senapathi Bapati Bapat Marg, Lower parel (W) MUMBAI-400 013.
- Mahendra and Mahendra Financial Services (P) Limited,
40/31-4 1st Floor, Medum Compound, Park Road, Kurnool-518 001 … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.I.Anantha Rama Sastry, Advocate, for the complainant, and Sri.G.Madhusudhan Reddy, Advocate for opposite party No.1 and Sri.N.Nanda Kishore, Advocate, for the opposite party No.2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. C.Preethi, Lady Member)
C.C.No.150/07
1. This consumer complaint of the complainant is filed U/S 12 of C.P.Act 1986, seeking a direction on opposite parties to pay Rs.3,77,868/- being the outstanding balance of payment of loan account of deceased with 24% interest, Rs.50,000/- towards compensation for mental agony , cost of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainants case is that the complainant is the mother and legal hire of late Gopala Kuruva who availed loan for Rs.3,77,868/- from opposite party No.1 and the deceased purchase of new Mahindra 265 D 1 Bhumiputra Tractor under the Mahindra loan Suraksha scheme called Kotak Credit Term Group Plan ( Policy C 1) agreement No.475945 . As per the said scheme on the event of death of the person who availed the loan the opposite party No.1 is bound to pay the outstanding loan amount thereby protecting the family of the insured from the burden of repayment of loan. The said policy commenced from 28-7-2006. The complainant’s son suddenly fell ill and was hospitalized and died on 26-8-2006, subsequently the complainant approached opposite party No2 in connection with release of claim amount but there was no response . Thereafter, the complainant got issued a legal notice dated 26-7-2007 and the opposite party No.1 replied dated 4-9-2007 repudiating the claim . Hence the above repudiation constrained the complainant to resorted to the forum for reliefs.
3. In substantiation of her case the complainant relied on the following documents viz., (1) Xerox copy of case sheet and discharge , (2) office copy of legal notice dated 26-7-2007 and (3) reply of opposite party No.1 to Ex.A2 , besides to the sworn affidavit of the complainant in reiteration of her complaint averments and the above documents are marked as Ex.A1 to A3 and the complainant also relied on the third party affidavit of K. Hanumanna and K. Lakshmanna and replies to the interrogatories exchanged.
4. In pursuance to the notice of this forum as to this case of the complainant the opposite parties through their standing counsel and contested the case by filling separate written version.
5. The written version of opposite party No.1 denies the complaint as not maintainable either in law or on facts but admits the deceased has taken an insurance coverage and died within one month from the date of insurance of policy. As per the policy on the death of the person taking the loan the opposite party No.1 shall pay the outstanding loan amount thereby protecting the family of the insured. Clause 3 of terms and conditions of the policy provided for entertaining into the group cover . A person has to be in good health and must submit the duly signed declaration of evidence of good health. It further submits that the complainants son despite not being in good health signed the required declaration of good health on 28-7-2006 and fraudulently availed the benefits of the policy by committing breach of terms and conditions of the policy, and the complainants son misconcealed the opposite party No.1 and has taken the policy. The policy holder suppressed the material information about his health and misled the opposite party and has intentionally declared falsely in the declaration form and hence the opposite party No.1 rightly repudiated the claim of the complainant and there is no deficiency of service on part of opposite party No.1, as it is well established that a contract of insurance is contract of utmost good faith. Hence, the opposite party No.1 is not at all liable for payment of any amount to the complainant and seeks for the dismissal of complaint with costs.
6. The written version of opposite party No.2 submits that the complaint is not maintainable either in law or on facts but admits the deceased Gopal Kuruva has availed financial facility from opposite party No.2 and in the said process, the deceased got cover under group plan. The deceased policy holder suppressed material facts of his health i.e, suffering from HIV / AIDS and died due to the said cause directly. Hence, the rejection of claim by opposite party No.1 is perfectly in order. The opposite party No.2 has acted only as a courier/post office and has no role in the rejection of claim by opposite party No.1 and there is no deficiency of service on part of opposite party No.2 directing joint and several liability and lastly seeks for the dismissal of the complaint with costs.
7. In substantiation of their case the opposite parties relied on the following documents viz., (1) attested copy of investigation report dated 12-2-2007 , (2) attested copy of declaration of good health, (3) letter dated 15-2-2007 of opposite party No.1 to opposite party No.2 and (4) certificate of cover issued to the deceased Gopal Kuruva , besides to the sworn affidavit of opposite party No.1 and 2 in reiteration of their written version documents and the above documents are marked as Ex.B1 to B4 for its appreciation in this case and replies to the interrogatories exchanged.
8. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service.
9. It is not in dispute that the deceased policy holder by name Gopala Kuruva was covered under certificate of cover vide Ex.B4 issued by opposite party No.1 . It is also not in dispute that the deceased died on 26-8-2006 . As per the policy issued to the deceased, the deceased life risk was covered, as he availed loan for the purchase of Mahindra Tractor and as per the policy, if the person taking loan dies, the opposite party No.1 shall pay the out standing loan amount there by protecting the family of the insured.
10. In this case the deceased died on 26-8-2006 and a claim was put forth and it was repudiated by opposite party No.1 vide Ex.A3. The Ex.A3 dated 4-9-2007 is the reply of opposite party No.1 to the legal notice ( Ex.A2) dated 26-7-2007 of the complainant counsel, it envisages the death of Gopala Kuruva was not natural and they received Hospital papers of the St. Theresa Hospital, where the deceased has taken treatment. Hence, it is stated that the deceased with held correct information of his health that he was suffering from AIDS for past two years and hence they repudiated the claim on the ground of non-disclosure of material facts.
11. The main contention of opposite parties is that the deceased was suffering from AIDS for past two years before to his death and the opposite parties contended that while submitting the declaration of good health form vide Ex.B2 for entering into group policy, the deceased concealed material facts from the opposite parties about his suffering from HIV/AIDS and therefore the opposite parties are absolutely justified in repudiating the claim.
12. In support of their contentions the opposite parties side relied Ex.B1 investigation report dated 12-2-2007, from the above report one thing is clear and may be significantly be noticed that the said report is based on the statements of Hanumanna and Laxmanna. The said Hanumanna & Laxmanna have filed their affidavits into this case. The said affidavitors stated that they have not givens such statements to the opposite parties that the deceased Gopala Kuruva was suffering from AIDS and they submitted that due to sudden illness only the deceased died.
13. The opposite parties merely relied upon the investigation report
( Ex.B1) and the so called statements of Hanumanna & Laxmanna recorded by investigator during the course of his investigation. The sole reliance by the opposite parties on the said statements without any substantiating material there in satisfying of their correctness for reliance by them and to arrive at the said conclusion is not remaining justifiable to take the bonafides in the said repudiation of claim, especially, those persons whose alleged statements said to have been covered under Ex.B1 have give sworn affidavits in this case proceedings denying to have given any such statements as in Ex.B1 to the investigator. Therefore, the Ex.B1 carry any force for reliance by opposite parties and the repudiation by opposite parties being on said Ex.B1 remains not justifiable.
14. The opposite parties merely filed Ex.B1 to B4 , it does not mean that the contends there of are necessarily true, no documents or direct evidence is produced by the opposite party about the suppression of material facts or violation of policy condition by the deceased, mere ascertion or oral testimony in respect of suppression and violation of conditions neither inspires any confidence nor can be acted upon. Onus is on the opposite parties to substantiate their plea. The main plea of opposite parties in their repudiation Ex.A2 is that the deceased concealed his ill health, and they have the papers of St.Theresa Hospital, Kurnool, where the deceased has taken treatment, but no such hospital record is produced by opposite parties for perusal by this forum. On the other side the complainant brought on record Ex.A1 case sheet of Gopal of St. Theresa Hospital , Kurnool, on perusal of said Ex.A1 nowhere it is stated that the said Gopal has taken treatment for HIV . Hence, it cannot held that the deceased was suffering from HIV prior to the commencement of the said policy. Hence, the exhibits filed by opposite parties does not substantiate the pleas taken by opposite parties , hence they cannot be looked into nor they inspire any confidence.
15. Having regard to over all consideration there is no hesitation to hold that the opposite parties miserably failed to substantiate that the complainant suppressed material facts of his health and violated policy condition. Therefore, in these circumstances the repudiation of claim by the opposite parties is wholly arbitrary unreasonable and unjust and amounts to deficiency of service.
16. Now the point for consideration is to what relief the complainant is entitled to :- The complainant in this case has not placed any cogent material to show that the outstanding loan amount of Gopal Kuruva was paid by her and no material is filed by the complainant to show that the said amount should be paid to her and as per the Ex.B4 certificate of cover, the deceased Gopal Kuruva was covered with life insurance cover by Kotak Life Insurance to the extent of outstanding principal amount of loan taken from Mahindra finance. Hence , as no concealment or suppressed of health by the deceased is proved by the opposite parties, the liability is fastened on the opposite party No.1 (Kotak Life Insurance) to the credit to the loan account of deceased the outstanding amount of loan taken from Mahinda finance.
17. In the result, the opposite party No.1 (Kotak Life Insurance) is directed to credit to the loan amount of deceased Gopal Kuruva , as to the outstanding loan amount with Mahindra Finance ( opposite party No.2) within one month from the date of receipt of this order. As the opposite party No.1 by their deficit conduct driven to the complainant to the forum for redressal, the opposite party No.1 shall pay to the complainant costs of Rs.5,000/- as to this case within one month from the date of receipt of this order. In default the opposite party No.1 shall pay the above costs with 12% interest from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 13th day of October, 2008.
Sd/- Sd/-
MEMBER PRESIDNET
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox of case sheet and discharge.
Ex.A2. Office copy of legal notice dated 26-7-2007.
Ex.A3. Reply of OP.No.1 to Ex.A2.
List of exhibits marked for the opposite parties:
Ex.B1. Attested copy of investigation report dated 12-2-2007.
Ex.B2. Attested copy of declaration of good health.
Ex.B3. Letter dated 15-2-2007 of OP.No1 to OP.No.2.
Ex.B4. Certificate of cover.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
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