IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day March, 2023.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 127/2021 (Filed on 29-07-2021)
Petitioner : Saly Tomy,
W/o. late Joseph V.A.
Vanderkunnel House,
Kizhathadiyoor P.O.
Kochidappadi, Pala,
Pin - 686574
(Adv. Joseph T.John and
Adv. R. Manoj)
Vs.
Opposite parties : (1) Bajaj Allianz General Insurance
Company Ltd.
Rep. by Authorized signatory,
Bajaj Allianz General Insurance
Company Ltd. 3rd Floor,
YMCA Building, Sastri Road,
Kottayam – 686001.
(Adv. Sreenath D)
(2) South Indian Bank,
Rep. by Manager,
South Indian Bank,
Arunapuram Branch,
Arunapuram P.O. Pala - 686574
(Adv. Anie C. Kuruvilla)
O R D E R
Sri. Manulal V.S. President
The case of compliant is filed under Section 35 of Consumer Protection Act, 2019.
Case of the complainant is that late Joseph V.A. who is the husband of the complainant had availed loan from the second opposite party for a sum of Rs. 10,00,000. At the time of availing the loan Joseph V.A. had also taken ‘Global Personal Guard Policy (individual) from the first opposite party’ on the advice of the staff of the second opposite party. The same was extended to time to time. The said joseph died on 8-5-2019 due to heart attack.
It is averred in the complaint the second opposite party had initiated to take the policy on the condition that if death of the husband of the complainant occurred, the entire due loan amount will be paid by the first opposite party to the second opposite party. When the complainant approached the second opposite party it was informed that the policy which is availed from the first opposite party will not cover the death of the policy holder due to heart attack and have the coverage only with regard to the accidental death. But at the time of taking the policy the agent ie. the second opposite party had affirmed that the said policy will cover all types of death of the policy holder. According to the complainant due to the unfair trade practice the complainant had sustained a loss of 7 lakhs rupees as the interest of the loan. It is further averred in the complaint that due to the misrepresentation of the second opposite party the husband of the complainant had taken the policy from the first opposite party and now the complainant and the legal heirs of the policy holder has facing huge financial difficulties and losing the residential building. The act of the opposite parties amounts to deficiency in service and unfair trade practice. Hence the complainant filed this complaint praying for an order to direct the first opposite party to disburse the sum insured to the loan account of the complainant’s husband’s towards the second opposite party and to direct the opposite parties to pay Rs.7 lakhs ie. the interest cumulated due to the non –disbursement of policy amount towards the loan and to direct the second opposite party to pay Rs. 3 lakhs as compensation for the misrepresentation for taking insurance policy.
The first opposite party filed version contending that the complaint is not maintainable either in law or on facts.. It is true that late Joseph V.A. had taken Globel personal Guard policy (individual) on 5-9-2016 and renewed subsequently for years till 28-9-2019. The coverage opted under all the policies are accidental death for a sum assured of Rs. 10,00,000 with a gross premium of Rs.814/- only. No claim was registered under this policy. The first opposite party has issued a policy which covers only accident/trauma and accidental death, which was specifically communicated to the policy holder at the time of taking the policy and the same is agreed and understood then the proposal form is filled and paid the premium. The husband of the complainant died due to heart attack, as this is natural cause of death and does not falls under accidental death so that will not come under the scope of the policy and the first opposite party has no liability as per the terms and conditions of the policy. The insured had option as mentioned in policy schedule to cancel the policy if he is not happy with coverage opted but he wished to continue the policy for 2 years without any hesitation regarding coverage applicable. There was no deficiency in service on the part of the 1st opposite party and hence the complaint ought to be dismissed.
Second opposite party filed separate version in which they admitted that the complainant and late Joseph V.A. had jointly availed loan of Rs. 5,00,000/- from the second opposite party on 27-3-2015 and the same was enhanced to Rs.10,00,000/- on 23-2-2016 and lastly the loan amount was enhanced to Rs.15,50,000/- on 21-3-2018. As per the loan sanction and as per scheme rules the second opposite party intimated the customers about a personal accident insurance policy and had advised them about the same. The personal accident insurance policy was availed by the deceased Joseph V A and was renewed till 28-8-2018. The second opposite party never give any mandate or made any compulsion to the deceased for availing he personal accident policy. The second opposite party was not a party to the contract entered into between deceased joseph and the first opposite party.
At the time of availing the policy the second opposite party made it clear that the amount covered under the policy will be paid only in the event of death due to accidental reasons and if any amount is thus received on accidental death it will be adjusted to the account holders loan account maintained with the second opposite party. As per documents submitted to the second opposite party it is understood that Joseph V A was expired on 8-5-2019 due to natural course ie. due to heart disease. The claim submitted by the complainant was forwarded to the first opposite party and it was rejected by the fist opposite party since the death of Joseph V A was due to natural reasons. There was no deficiency in service on the part of the second opposite party.
The evidence in this case consists of deposition of Pw1 ,Dw1, DW2 and DW3 and documentary evidence marked as Exts.A1 to A6 on the part of the complainant and Exts. B1 to B4 marked on the side of the opposite parties.
The learned counsel for the complainant contended that Joseph V A who was the husband of the complainant availed loan from the second opposite party for Rs. 10,00,000/-. At the time of availing loan second opposite party bank advised to take an insurance policy by name Globel personal Guard policy (individual)’ in order to cover the loan in the event of death of the said Joseph V A. The tenure of the policy was renewed from time to time. While so Sri. Joseph V a suffered a massive heart attack and he died due to the said disease. As per the terms and conditions of the insurance policy, he was exempted from paying the outstanding loan amount after his death and so claim was preferred on 22-6-2019 before the first opposite party insurance company by the complainant vide exhibit A4 letter. By preferring the claim it was reasonably expected that as per the said policy conditions the representatives will be exempted from paying the balance outstanding loan amount. But the second opposite party informed that the policy which is availed from the first opposite party will not cover the death of the policy holder due to heart attack and have the coverage only with regard to the accidental death. As per the terms and conditions of Globel personal Guard policy (individual) availed by Sri Joseph V A he was exempted from paying the outstanding loan amount after his death. Since Sri. Joseph had suffered a sudden death, he will come within the ambit of Sec. I of the policy’. .
The learned counsel for the first opposite party, on the other hand, contended that the insured Joseph V A died of heart attack and hence the claim was not allowable. Such death is not accidental death. Accidental death means a sudden unforeseen and involuntary event caused by external and visible event. Thus the death in the instant case is not accidental death as envisaged under the policy. Hence the benefits under ‘Global Personal Guard Policy (individual)’ also would not be available to the insured in the present case and hence the insured or legal heirs are not entitled to any amount as per the terms of the policy.
We have considered the arguments canvassed by both the counsel and perused the records. The basic facts are not in dispute. Therefore it is only necessary to determine whether the complainant is entitled for the benefits of the policy. The specific contention of the complainant is that as per the terms and conditions of Global Personal Guard Policy (individual) availed by Sri. Joseph V A at the time of availing the loan, he was exempted from paying the outstanding loan amount after his death. It was stipulated in exhibit A1 policy wordings under the head ‘B. Operative parts’ what will pay for (a) it is mandatory to opt at least one of the sections and (b) terms and conditions of respective section will be applicable for basic covers and that in the event of accidental death or permanent total disability of the insured person during the policy period, the company will pay the sum insured s specified under the respective sections.
Perusing the exhibit A1 policy it can be seen that the policy provides the following coverage and benefits. Death, permanent total disability/permanent partial disability. Admittedly as per the terms and conditions of policy at the time of availing the loan he was exempted from paying the outstanding loan after his death. This was covered under the ‘Section I Death’ of the policy. The Global Personal Guard Policy (individual) will apply if the death occurred due to accident or permanent total disability of the insured person during the policy period and that the company will pay the balance outstanding loan amount in the manner agreed in the name of the insurance person and the claim will be directly paid to the bank to the extent of outstanding loan amount. In the instant case since it is a case of death due to heart attack and thus the claim should have been processed under ‘credit shield insurance policy’. Only then the company will make payment to the bank to clear the loan amount. The accident or accidental death has been defined under Sec. 5A (1) as ‘sudden, unforeseen and involuntary event caused by external and visible and violent means.’
‘Accident’ is defined in ‘Oxford’ Dictionary as unforeseen event that occurred by chance or accidental from natural or manmade forces on which an affected person has no control. Death caused due to heart failure may be sudden, but it will not come under the purview of accident or accidental death mentioned under the credit shield insurance policy. The death should happen due to sudden, unforeseen, involuntary event and is caused by external and visible event. The death in the instant case is not accidental death as envisaged under the policy as there is no external or visible or violent event which attributed for the cause of death. Even though in the instant case the death was sudden, it cannot be termed as accidental. Death due to heart failure is natural death and not accidental death. Hence the benefit under credit shield insurance policy will not be available to the insured in the present case.
We are annoyed to note that natural death due to any disease is not covered under this policy. We fail to understand why natural sudden death due to disease is not covered under credit shield policy and only accidental death is covered under credit shield policy, especially since there is special cover for “accident” under the policy. Policy holders like Sri Joseph V A are canvassed by the insurer and are induced to take the policy believing that their genuine claims will be honoured. However we are bound by the well settled legal position that the policy is a contract between the parties and both parties are bound by terms of the contract. Another contention of the complainant is that due to the misrepresentation of the second opposite party the husband of the complainant had taken the policy from the first opposite party. Dw1 who is the present Manager of the second opposite party admitted that as per exhibit A1 policy the second opposite party is the agent of he first opposite party and if the death of insured occurred the insured amount would be credited to the loan account. Dw2 who is the Manager of the second opposite party from 19-11-2012 to 16-04-2016 deposed before the commission that at the time of enhancement of the loan amount in the year 2106 he had told the complainant and her husband that in case if policy is taken for a small premium if any accidental death occurred to the loanee, the policy amount could be adjusted towards the loan account. He further deposed before he commission that the terms and conditions of the insurance scheme was intimated and informed to the complainant and her husband. Dw3 who was the manager of the second opposite party during the period 2018 to 2019 deposed before the commission though the loan was taken in the year 2015 but the policy was taken in the year 2016 onwards. He further deposed before the commission that ExhibitA1 policy was taken while he was the manager of the second opposite party and the same was the renewal of the earlier policy. The terms and conditions of the policy was also informed to the complainant and her husband and after fully understanding the conditions they elected to take the policy. It is pertinent to note that the first inception of the policy was 5-9-2016 and renewed subsequently for years till 28-9-2019. Moreover the complainant had no case that the terms and conditions of the policy was not supplied to the insured. On a closetful scrutiny of evidence adduced before us we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite parties.
In the result, the complaint is dismissed.
Pronounced in the Open Commission on this the 30th day of March, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Sworn statement from the side of complainant
Pw1 –Saly Tomy
Sworn statement from the side of opposite party
Dw1-Sajeev Sebastian
Dw2 – Anoop Johnson
D3 – Sreekanth K. Vijai
Exhibits marked from the side of complainant
A1 – Policy of Global Personal Guard Policy (individual)
A2 – Copy of death certificate from Pala Municipality
A3 – Legal heirship certificate dtd.11-10-19 by Thahasildar, Meenachil Taluk
A4 –Copy of application by Saly Tomay, Aneeta V. Tomy and Johns V. Tomy to
1st opposite party
A5 – Copy of application dtd.31-10-19 by Sali Tomy to 2nd opposite party
A6 – Letter dtd.25-03-20 by 2nd opposite party Sali Tomy
Exhibits marked from the side of opposite party
B1 – Copy of policy certificate issued by opposite party
B2 – Copy of letter dtd,.31-10-2019 by complainant to 2nd opposite party
B3- Copy of statement of account of Joseph and Saly Tomy for the period from 26-
03-15 to 20-10-2021
B4- Copy of policy with terms and conditions
By Order
Assistant Registrar
