Ld. Advocate(s)
For Complainant: Subhasis Roy
For OP/OPs :Abtur Rahim Sheikh
Date of filing of the case :21.10.2022
Date of Disposal of the case :27.05.2024
Final Order / Judgment dtd.27.05.2024
The concise fact of the complaint Sucharita Sil case is that the complainant is the wife of Late Subrata Sil . The said Subrata Sil during his life purchased one vehicle under H.P agreement with Mahindra and Mahindra finance services limited, Kalyani Branch on 02.04.2021. The said Subrata Sil also purchased one Life Insurance Policy from
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OP No.1&2 M/S Kotak Mahindra Life Insurance Company Limited having policy certificate no.CR000020-7293152 against loan I.D No.7293152 for the period 27.03.2021 to 26.03.2022 for a premium of Rs.4496.99. The husband of the complainant suddenly died on 03.05.2021 in Covid diseased at Nadia District Hospital . Due to failure to repay the EMI OP No.3 reprocessed the vehicle on 14.06.2022. The said insurance had covered value of Rs.7,00,000/-. The complainant submitted insurance claim application to OP No.1&2 on 09.12.2021 but the insurance company repudiated the claim on 18.01.2022. The OPs repudiated the claim on the ground that her husband was suffering from alcoholic liver disease. Her husband actually died for cardio respiratory failure, on a case of severe covid disease. So, the present case is filed. The cause of action arose on 27.03.2021 and thereafter on 03.05.2021 and filing on 18.01.2022 her claim was repudiated. The OPs company adopted unfair trade practice by repudiating the claim of the complainant on flimsy ground for which the complainant suffered mental pain and agony. The complainant , therefore, prayed for an award for Rs.7,00,000/- towards insurance money together with interest , Rs.5,00,000/- towards mental pain and agony and litigation cost.
The OPs contested the case by filing W/V wherein they denied each and every allegation. The OPs challenged the case as not maintainable on the ground that it is malafide , baseless and without cause of action. The positive defence case of the OPs in brief is that in accordance with the policy terms of the insurance , diseased Subrata Sil provided a declaration of good health which is a pre-requisite for availing group insurance cover, thereby assuring the OPs that he was medically fit to avail the said policy and was not suffering from any ailments. As an acknowledgement of extending insurance coverage to the member a certificate of insurance was issued to him which clearly stated the prima facie feature of the said insurance coverage. The OPs received the claim intimation form on 21.11.2021 signed by the complainant which was forwarded by the policy holder stating therein that the member Mr. Subrata Sil had expired on 03.05.2021 that is just within two months of issuance of the policy. Thereafter, the company had conducted investigation to verify the authenticity of the said claim and it was revealed that the diseased was suffering from alcoholic diseased and hepatomegaly prior to the date of the signing of the DOGH. On the basis of the medical documents of the complainant the claim was repudiated . During investigation it was discovered that the prescription form of Dr. Jayasri Pramanik dated 08.07.2018 it was found that the patient had a history of alcoholic liver disease. So, it is event that the person who opted for the policy from the OPs is the same person who was
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suffering from alcoholic liver disease prior to the issuance of the whole abdomen dated 19.01.2019 mentioned impression as Hepatomegaly, right sided pleuraleffsion . The diseased member concealed the said disease to the company. If the diseased member revealed his past medical condition during taking the insurance coverage, the company would not have provided with the life cover. The OPs repudiated the claim as per section 45 of the Insurance Act. A letter dated 18.01.2022 was sent to the complainant . The liability of the answering OPs was limited to refund the premium amount of Rs.3811.01. The member deliberately mislead the OPs to accept the proposal by concealing the material information. So, the OPs claimed that the present case is liable to be dismissed with exemplary cost.
The conflicting pleadings of both the parties led this Commission to ascertain the following points for proper adjudication of this case.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1.
The OPs challenged the case as not maintainable on the ground that the cause of action.
The complainant seems to have categorically stated that the OPs repudiated the claim, so the complainant filed the present case. Thus after perusing the entire case record it is found that the complaint specifically stated the reasons for filing the case. However, Ld. Defence Counsel in course of argument could not assign sufficient reasons as to why there is no cause of action . Be that as it may, having perused pleadings of the parties and the evidence in the case record the Commission is of the view that the
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present case is not barred under any provisions of law and there is cause of action to file but the present case.
Accordingly, point no.1 is answered in affirmative on behalf of the complainant.
Point No.2&3.
Both the points are very closely inter-related with each other and as such these are taken up together for brevity and convenience of discussion.
The complainant in order to substantiate the case proved the following documents in course of trial in addition to his affidavit in chief.
No.1 is the reprocessed vehicle inventory list.
No.2 is the death certificate of deceased Subrata Sil.
No.3 is the settlement of claim letter dated 18.01.2022 by the OP company to the complainant.
It is the admitted fact that the claim was repudiated on the ground that the complainant suppressed that he had predecease at the time of purchasing the insurance and as such the complainant has violated the terms and conditions of the insurance , so he is not entitled to get the insurance benefit.
Ld. Advocate for the complainant argued that the complainant/her husband were not aware of any diseased for which the insured died. The patient/husband of the complainant died due to covid reason after failure of respiratory system followed by the Covid . So, the predecease as alleged cannot be co-related with the ground death of the husband of the complainant.
Ld. Advocate for the complainant further argued that the OPs claimed that the husband of the complainant was drunker . Due to his liver disease he died and as such due to suppression of material fact the OPs repudiated the claim.
The best document in this case is the prescription of one doctor namely Dr. Jayasri Pramanik over which the OPs has given much stress and on the basis of which, they have tried to establish that the complainant had liver disease.
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Let us look into the said medical prescription of Dr. Jayasri Pramanik As per the said medical prescription issued by Jayasri Pramanik (Das) dated 08.07.2018 it has been diagnosed as “ALD” which means Alcoholic Leaver Disease .
Ld. Advocate for the complainant heavily criticised the said document as well as the demeanour of the OPs . Ld. Advocate for the complainant argued that the said Dr. Jayasri Pramanik (Das) is mainly skin specialist . So, she is not a medical expert to ascertain or opine about the alcoholic liver of the husband of the complainant. It is also submitted that the name of the patient in that prescription is written as S. Sil . Ld. Advocate criticised further that there may have so many persons under the name of Subrata Sil but S. Sil always does not mean Subrata Sil who is the insured of this case.
The argument has reasonable ground .
Ld. Advocate for the complainant further argued that in the said prescription the column M is written off and F is retained . F means female but Subrata Sil was male . Therefore, the said document is procured by the OP for the purpose of this case.
Ld. Defence Counsel could not discard the said important part of the argument of the complainant.
In view of the aforesaid points of criticism raised by the Ld. Advocate for the complainant the Commission is of the view that the said medical prescription raised great doubt as to the point of defence raised by the OPs.
The Defence Counsel drew attention of the Commission in regard clause 12 of certificate of insurance wherein it is stated that in case of fraud or mis-statement by the member, certificate of insurance shall be cancelled immediately by paying the surrender value, in accordance with the section 45 of the Insurance Act.
Ld. Advocate for the complainant seriously raised objection against the said allegation on the ground that the OP company never filed any case of fraud against the complainant.
Argument has reasonable force and acceptable in as much as there is nothing to show that the OP company took any legal steps against the alleged fraud of the complainant. So, also the OP company seems
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to have never issued any notice of letter to the complainant stating that the complainant had committed any fraud with the OP company.
Ld. Defence Counsel further argued that the USG report of the complainant shows an impression of Hepatomegaly, Right sided milled pleuraleffsion .
Ld. Advocate for the complainant counter argued by raising objection that patient died due to covid and the USG report does not disclose anything for which the patient could be died. From the said annexure-5 USG report it would be found that most of the organs like Gallbladder, Pancreatic, Spleen, Kidneys, Uterus bladder all are normal. So, the impression is not anything concerning .
The argument has reasonable force in as much as in the said USG report there is nothing abnormal which could cause death of the husband of the complainant.
Regard being also had to the fact that during covid period some of the patients died due to co-morbidity . But in the death certificate of the complainant there is no mentioning in annexure-2 that is the death certificate of Subrata Sil, that the death is due to liver failure or co-morbidity of liver disease. On the contrary, cause of death as per the death certificate is respiratory failure in a case of severe covid disease.
Ld. Defence Counsel also argued that the information as to death of the patient was given to the OP company after 12 months .
In the repudiation letter dated 18.01.2022 there is no mentioning that the claim is denied. So, the OP has taken this defence plea for the first time before this Commission that the claimed is detailed. In the said letter of repudiation dated 18.01.2022 the OP company refunded Rs.3811.01 which is refunded as the premium amount but could not give any explanation regarding calculation of the amount. The claim was rejected on the ground that the information was not disclosed in reply to the specific question in the proposal form.
After perusing the proposal form it appears that the complainant filled up the said proposal form as per requirement of the OP.
The further evidence of the complainant also discloses that during cross-examination by the OP in regard to question that “ Do you agree that in total disregard of good faith the assured suppressed
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his health condition,” the complainant categorically answered that he did not agree with the OP regarding the said question.
The complainant was further asked as to whether the OP had suffered complication relating to alcoholic liver disease and Hepatomegaly prior to the signing of the DOGH. The complainant categorically answered that it is not at all correct. He never suffered from alcoholic liver disease.
The complainant also challenged the said certificate of Dr. Jaisree Pramanik against question no.10 and answered in cross-examination that the OP has submitted a false document along with his W/V.
The most of the answers in cross-examination actually corroborated the case of the complainant. It is important to consider that if an answer comes in cross-examination it has special effect. So, the defence plea of rejection of the claim could not be duly established .
The complainant in order to further strengthening the case referred to a decision reported in 2023 (4) CPR 60 (NC) wherein it was held that it is fundamental principle in the insurance contracts that the party claiming exemption clause needs to establish the same. The said case law is applicable here and as such it is relied on.
Ld. Advocate for the OP referred to a case law reported in Civil Appeal No.3944 of 2019 between LIC and Manish Gupta wherein it was held that a contract of insurance involves utmost good faith. It is the obligation to disclose everything in the proposal form and insured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.
The case law does not help the OP in as much as in the present case the OP could not establish that the complainant suppressed anything in the proposal form and the death of the insured was due to the effect of the predecease which is alleged to have been subsisting at the time of making the policy.
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The OP also referred to another case law reported in Civil Appeal No.5322 of 2007. It was held by the Hon’ble Apex Court in that decision that every facts of material must be disclosed otherwise there is good ground for rescission of contract.
The said case law does not help the OP here because the OP could not prove that the deceased had suppressed anything at the time of purchasing the insurance which caused the death of the insured.
In another case law reported in Civil Appeal No.4261 of 2009 passed by Hon’ble Supreme Court , referred by Ld. Defence Counsel it was held that it is the duty to make full disclosure by the insured.
The said case law does not have any application here in as much as the reported case relates to question as to whether the insured took any insurance policy previously. The facts of the reported case and the present case are absolutely different. So, the said case law does not match with the present case in hand.
Ld. Defence Counsel also referred to another decision reported in revision petition no.470 of 2015 of Hon’ble N.C.D.R.C in Delhi, in which it was held that when the complainant failed to produce any evidence and no affidavit was filed calling into question of the said documents, then the case of the complainant cannot succeed.
The said law does not apply here because there is nothing to show that the complainant here failed to adduce any evidence or any affidavit against the question put by the OP. In the instant case the complainant duly answered to the cross-examination put by the OP No.1&2 and he also adduced evidence of affidavit in chief and documentary evidence in support of his.
In view of the aforesaid discussion and observation made hereinabove the Commission comes to the finding that the OP repudiated the claim of the complainant without sufficient ground which tantamount to deficiency in service and as such the suffered harassment and mental pain and agony. It should be compensated in terms of money.
Point No.2&3 are accordingly answered in affirmative on behalf of the complainant.
In the result complaint case succeeds on contest with cost.
Hence,
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It is
Ordered
that the complaint case no.CC/105/2022 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand) against the opposite parties. The complainant do get an award against both the opposite parties , Branch Manager , Kotak Mahindra Life Insurance Company Ltd. and Director, Kotak Mahindra Life Insurance Company Ltd. for a sum of Rs.7,00,000/-(Rupees seven lakh) towards the insurance money, Rs.1,00,000/- (Rupees one lakh) towards harassment and mental pain and agony and Rs.5,000/- (Rupees five thousand) towards litigation cost . The Opposite parties are directed to pay Rs.8,05,000/- (Rupees eight lakh five thousand) to the complainant within one month from the date of passing final award failing which the entire award money shall carry an interest @8% p.a from the date of passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
