Orissa

Cuttak

CC/109/2017

Mrs Sulochana Pradhan - Complainant(s)

Versus

Branch Manager,Kotak Life Insurance Co Ltd - Opp.Party(s)

R K Pattanaik & associates

26 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                           C.C.No.109/2017

Mrs. Sulochana Pradhan,

W/O:Late Gatikrushna Pradhan,

Plot No.1662,Near Trinath Temple,

Sundarapada,Bhubaneswar-751002.                                                    ... Complainant.

 

                                                Vrs.

Branch Manager,

Kotak Life Insurance Company Limited,

Cuttack Branch Office,Kailash Plaza,

Room No.29,2^nd Floor,Link Road,Cuttack.... Opp. Party.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    11.09.2017

Date of Order:  26.05.2022

 

For the complainant:          Sri R.K. Pattnaik,Adv. & Associates.

For the O.P.       :                  Mr. D.P.Tripathy,Adv. & Associates.

 

Sri Debasish Nayak,President.

                                               

            The case of the complainant as made out from the complaint petition in short is that the deceased husband of the complainant had given a proposal on 30.4.16 to the O.P,Insurance Company for insuring his life.  He was issued policy vide No.03463933 by the O.P under the name and style “Kotak Premier Endowment Plan”.  The said policy was for a period of 15 years and the sum assured was of Rs.6,73,000/-.  The premium payable under this policy was of Rs.30,029/- half yearly for 15 years.  Having accepted the premium, the policy agreement was in force when the husband of the compliant died due to heart attack while he was sleeping in the night on 15.1.17.  The complainant being the beneficiary widow of the assured putforth her claim before the O.P on 22.6.17 for the assured amount and she was intimated that her claim will be considered within two weeks.  But, to her dismay, the claim was repudiated by the O.Ps on the ground of suppression of fact that her deceased husband was suffering from pulmonary tuberculosis since January,2016.  The repudiation of the policy was made on 16.8.17.  The complainant harps on the point that her husband had died due to massive heart attack and not for suffering from Tuberculosis.  When the O.P paid no heed, the complainant was compelled to approach this commission seeking redressal and thereby praying to set aside the repudiation of the policy, directing to the O.P to release the assured amount of Rs.6,73,000/- along with interest @ 12% per annum from the date of repudiation till the payment is quantified.  She has also claimed from the O.P. an amount of Rs.1,00,000/- towards her mental agony and harassment.  She has further claimed the cost of litigation from the O.Ps to the tune of Rs.20,000/-.

2.         On the other hand, the O.P has contested this case and has filed written version wherein the O.P has questioned the maintainability of the complaint petition, which, according to him is liable to be dismissed.  In the written version, the O.P has urged about the suppression of fact by the assured while he entered into the agreement of the policy that he was suffering from tuberculosis.  The O.P has relied upon a catena of decisions regarding suppression of fact etc. That in the judgment of TATA AIG Life insurance co. Ltd. vs. Orissa State Co-Operative Bank & ANR,(2012) CPJ 310(NC), the Hon’ble Supreme Court interpreted the terms “material fact” in the judgment.  The terms “material fact” is not defined in the Act and therefore it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgement of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  He also mentioned another judgment of NCDRC in F.A. No.242/2006 decided   on 27.7.2006 by  (Dinesh bhai Cnandrana Vs. LIC & Anr).  He has also mentioned a decision of Hon’ble Supreme Court in Smt. Sarbati Devi and Another Vs. Smt. Usha Devi(1984) 1 SCC 424 that a “mere nomination does not have the effect of conferring to the nomine any beneficial interest in the amount payable under the life insurance policy on death of the insured”.  The Hon’ble Supreme Court has reiterated in Vishin N Khanchandani and Another Vs. Vidya Lachmandas Khanchandani and Another (2000) 6 SCC 724, that the law laid down in Smt. Sarbarti Devi(supra) holds the field.  As such, the O.P has averred that the complainant is thus not entitled to any relief from this Hon’ble Forum and the complaint deserves to be dismissed on this court as well.  He has also filed a decision of Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. [2009 (9) Scale 488] has held, “a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured.  Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.” The O.P has also stressed upon clause-11.1 of the proposal form where the assured was to mention that if he had any respiratory diseases/disorders like Asthma,bronchitis,pulmonary TB and lung ailment etc.  It is for this, the O.P had repudiated the claim as made by the complainant and has prayed to dismiss the complaint petition with exemplary cost.

3.         Keeping in mind the averments as made out in the complaint petition as well as that from the written version of the O.Ps, this Commission feels it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case as filed is maintainable?

            ii.         Whether the complainant had any cause of action to file this case?

            iii.        Whether there was any deficiency in service on the part of the O.P.

            iv.        Whether the O.P had adopted any unfair trade practice?

            v.         Whether the complainant is entitled to the relief as claimed by him?

            In order to support their cases, the complainant and the O.P as well have filed their respective supportive documents.

Issue No.3 & 4.

            For the sake of convenience issues No.3 & 4 are taken up together first for consideration.  It is not disputed that the deceased husband of the complainant had undertaken a policy in the name and style “Kotak Premier Endowment Plan” vide policy no.03463933.  It is also not disputed that the deceased husband of the complainant was paying the premium as due.  The complainant is admittedly the beneficiary of the assured deceased.  On perusal of Annexure-4 filed by the O.P which is copy of the medical term of the deceased husband of the complainant issued by the Medical Superintendent, B.M.General Hospital,Chandpur in response to R.T.I application; wherein it is mentioned that the deceased husband of the complainant was admitted  to hospital on 5.1.16 vide registration no.626 and was treated for pulmonary TB till 15.3.16 and he was discharged vide sl.no.749. 

            But as per Annexure-2 filed by the complainant of this case which is copy of the death certificate of her assured deceased husband, it is reflected therein that death of the assured was due to heart attack.  As it appears that the assured deceased was under treatment for TB with effect from 5.1.16 to 15.3.16 and he had preferred the policy Kotak Premier Endowment Plan on 30.4.16.  Thus after returning from TB treatment the deceased assured had entered into the policy where he had not disclosed that he had suffered from TB.  It is for this, the O.P claims that due to suppression of material fact he had repudiated the claim but here it is to be seen that if the said pulmonary TB is the cause of death of the deceased assured which resulted in heart attack.  Annexure-2 as filed by the complainant clearly shows that the complainant died due to heart attack and not due to suffering from TB and there is no cogent evidence to show that the death of the assured was due to pulmonary tuberculosis which led the heart attack and he died.  Thus, it cannot be concluded that by repudiating the claim, the O.P had done justice to the claimants.  It is admitted that the treatment of TB by the assured deceased was not disclosed but since because the same cannot be said to be the cause of death, the whimsical repudiation of the policy and not releasing the assured amount in favour of the beneficiary claimants cannot be termed as a proper trade practice and that there was no deficiency in service.  As such, this Commission is of the opinion that when the assured deceased Gatikrushna Pradhan had died due to heart attack and not because of pulmonary tuberculosis, the O.P by repudiating the claim of the complainant had definitely caused deficiency in service and had adopted unfair trade practice.  The catena of judgments as relied upon are thus of no help to the O.P.  Accordingly these two important issues answered in favour of the complainant.

Issues No.1 & 2.

            From the above discussion, it can be said here in this case that the complainant being beneficiary of the deceased assured had filed this case when her claim was repudiated and thus she is having definite cause of action and her case is definitely maintainable.  These two issues are also answered in favour of the complainant.

Issue No.5.

            When the claim of the beneficiary/complainant was repudiated unnecessarily, she is entitled to the reliefs as claimed by her.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.P.  The O.P is directed to release the assured amount of Rs.6,73,000/- as per the policy of the deceased assured in favour of the beneficiary complainant along with interest @ 9% per annum from the date of repudiation till the payment is quantified.  The O.P is also directed to pay a sum of Rs.50,000/- towards mental agony and harassment caused to the complainant and to pay a sum of Rs.20,000/- towards cost of litigation. The order is to be carried out within a month hence.

Order pronounced in the open court on the 26^th day of May,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                                                        

                                                                                                                            

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                             

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.