Orissa

Cuttak

CC/74/2022

Ashok Kumar Kar - Complainant(s)

Versus

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

A K Dash & associates

02 Jan 2023

ORDER

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

C.C.No.74/2022

 

Ashok Kumar Kar,

S/O:LateSarbeswar Kar,

At-Plot No.583/2,Sikharpur,Upper Sahi,

P.O:ColelgeSqwuare,P.S:Malgodown,

Dist:Cuttack-753003.                                                  ... Complainant.

 

                                                                Vrs.

1. The Branch Manager,

Kotak Mahindra Life Insurance Company Limited,

Kalash Plaza,2^ndFloor,NearNishamani Hall,

Link Road,Cuttack-753012.

 

2. Registered Office,2^nd Floor,

Plot # C-12 G Block,BKC,Bandra€,

Mumbai-400051.

 

3. Corporate Office,7^th Floor,

Kotak Infiniti Building No.21,Infinity Park Off,

W.E Highway General AK Vaidya Marg,

Malad, Mumbai-400097.                                                                             ... Opp. Parties.

 

 

 

Present:               Sri Debasish Nayak,President.

                                                Sri SibanandaMohanty,Member.

 

               Date of filing:     22.04.2022

Date of Order:    02.01.2023

 

For the complainant:           Mr. A.K.Dash,Adv. & Associates.

For the O.Ps.              :         Mr.G.D.Mohanty,Adv,. & Associates.

 

Sri Debasish Nayak,President. 

          The case of the complainant as made out from the complaint petition bereft unnecessary details in short is that he is the nominee husband of Late Arundhati Kar.  The said deceased Arundhati Kar had taken one LIC policy from the O.Ps.  On 30.11.18 the agent of the O.Ps had approached Arundhati Kar and had taken her proposal form and as per his advice on 3.12.2018 an amount of Rs.1,04,500/- was paid by Arundhati Kar through NEFT from her S.B.I Account bearing no.10368350442 towards the said policy.  Subsequently she received the policy certificate bearing no.9063054.  She had paid the second premium amount of Rs.1,02,250/- on 17.12.2019 through NEFT from her aforesaid S.B.Account.  Arundhati Kar died on 15.9.2020 due to heart stroke when the policy was inforce.  After hear death, the complainant being the nominee of the deceased Arundhati Kar, the policy holder; had contacted the Branch Manager(O.P No.1) for getting the assured amount of the said policy to the tune of Rs.9,09,170/-.  The O.P no.1 had also taken the copy of the death certificate of Arundhati Kar alongwith all the medical informations, prescriptions and original policy bond bearing no.9063054.  Thereafter, the complainant had repeatedly visited O.P no.1 for about two months and had contacted O.P no.2 for release of the assured amount against the said policy of his deceased wife Arundhati Kar.  But on 12.1.21 the O.Ps had paid a sum of Rs.2,00,000/-  through NEFT to the Bank of India Account of the complainant bearing no.10368350442.  The complainant being dissatisfied had sent mail to the O.Ps on 2.2.21,10.2.21,17.3.21 but the O.Ps had not responded to any of the said grievance petitions of the complainant.  The complainant thereafter had sent legal notice to the O.Ps through Registered post on 28.2.22/1.3.22.  The O.Ps had repliedvide their letter dt.17.3.22  after getting the legal notice of the complainant that they would be sending the detailed reply to the legal notice of the complainant shortly and ultimately when no fruitful result yielded, the complainant has filed this case claiming the balance amount of Rs.7,09,170/- from the O.Ps alongwith a sum of Rs.1,00,000/- towards his mental agony and harassment and another sum of Rs.1,00,000/- towards deficiency of service by the O.Ps.  The complainant has further claimed a sum of Rs.10,000/- towards his litigation cost.

          To further his case, the complainant has filed copies of series of documents alongwith his complaint petition.

2.       On the other hand, the O.Ps have contested this case and have conjointly filed their written version wherein  they have stated that as per the license given to them they operate as per the guidelines of IRDAI.  They have questioned about the maintainability of the complaint petition.  According to them, the insured deceased Arundhati Kar had a past medical history of type-II diabetes mellitus, hypertension and was a k/c/o psychiatric illness patient prior to executing the proposal form with the O.Ps.  She had not disclosed the said diseases in the proposal form.  In such a case, the O.Ps were liable to refund the premium as paid, for which an amount of Rs.2,00,000/- was refunded by the O.Ps. to the complainant’s bank account through NEFT towards full and final settlement.  Thus, according to the O.Ps, the complainant has not approached with clean hands for which the O.Ps have relied upon the decision of the Hon’ble Supreme Court in the case of Arunima Baruah Vrs. Union of India and others(2007) 6 SCC 120.  It is urged by the O.Ps that as per Sec-45 of the Insurance Act,1938 the Insurance Company can challenge the policy under the ground of concealment of the material fact by the insured within three years from the date of commencement of the policy.  Here in this case, the policy was commenced on 30.11.18 and the assured died on 15.9.20.  Since because she had suppressed her past medical history as aforesaid, the policy according to the O.Ps was void abinitio.  As such, according to the O.Ps, the complaint petition is liable to be dismissed.  The O.Ps have further averred through their written version that as per the doctrines of Uberrimae fidei, the policyholder should have disclosed all the material facts prior to entering into the policy with the O.Ps.  In this connection, they have relied upon the two important decisions of Hon’ble Supreme Court as held in the case of LIC of India Vrs. Smt. G.M.Charnnabasemma AIR 1991 SC 392 and also in the case of Satwant Kaur Sandhu Vrs. New India Assurance Company Ltd. 2009(9) Scale 488.  The O.Ps have also relied upon the decision in the case of Reliance General Insurance Company Ltd. Vrs. Madhavacharya (R.P.No.2011/2009) wherein the Hon’ble National Commission has clearly stated that since the insurance between the insurer and the insured is a contract, the terms of the agreement including the applicability of the provision also its inclusion had to be strictly construed to determine the extent of liability of the insurer.

          While executing the proposal form, the deceased Arundhati Kar on 30.11.18 had preferred “Kotak Premier Life Plan” and she had not disclosed about her previous illness while entering into the proposal plan with the O.Ps.  As such, the O.Ps had settled her claim by returning the premium amounts as paid towards full and final settlementto the tune of Rs.2,00,000/-and have urged through their written version to dismiss the complaint petition as filed by the complainant.

          The O.Ps have filed copies of series of documents including the proposal form, the policy, the medical treatment prescriptions etc alongwith copies of legal notice and reply therein in order to prove their case.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if they had practised any unfair trade?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issues no.II.

Out of the three issues, issues no.ii  being the pertinent issue is taken up  first for consideration here in this case.

Admittedly, the complainant is the nominee of his deceased wife Arundhati Kar who during her life- time had preferred to obtain Kotak Premier Life Plan wherein the assured sum was of Rs.9,01,120/- which was effectivefor a policy term of 50 years from30.11.2018 till 30.11.2068.  During subsistence of such policy, the  nominee/complainant of the assured Arundhati Kar had putforth his claim in order to get the assured amount from the O.Ps.The O.Ps had made the full and final settlement by paying a sum of rs.2,00,000/- to the account of the complainant only and had not listened to the further correspondences of the complainant for the balance amount of the assured amount.  The contention of the O.Ps in this context is that the insured late Arundhati Kar had suppressed material facts by not disclosing those that she was suffering from medical illness like type-II diabetes mellitus, hypertension and was a k/c/o psychiatric illness patient.  To justify the settlement as made by the O.Ps, they have referred to a catena of decisions of the Hon’ble Supreme Court and even of the Hon’ble National Commission.  But one thing here in this case harps to our mind that if it is fact that the deceased Arundhati Kar had died due to the result of her past illness of heart stroke.  Keeping the same in mind, while probing into the copies of series of documents as filed by the O.Ps here in this case, it is noticed that ofcourse there are some medical documents showing about the diabetic treatments of the deceased Arundhati Kar but nowhere it is found by this Commission that the deceased Arundhati Kar had  any hypertension for which she had been treated earlier.  The cause of death of Arundhati Kar is heart stroke.  The O.Ps should have established their contention by probing the relevant documents in order to apprise this Commission that the assured Arundhati Kar was being treated for hypertension which had led to her subsequent cardiac arrest and she died thereof.  In absence of the same, this Commission finds that the full and final settlement as arrived by the O.Ps appears to be unilateral and arbitrary and not based on proper relevant documents.  Thus, undoubtedly there was deficiency in their service as noticed by repudiating the full claim amount of the complainant towards the policy of his deceased wife Arundhati Kar and thereby the O.Ps have practised unfair trade.  This issue goes against the O.Ps.

Issues no.i& iii.

From the discussions as made above, the case of the complainant is maintainable and the complainant is entitled to the reliefs as claimed by him.

                                                                        ORDER

Case is decreed on contest against the O.Ps who are found to be jointly and severally liable here in this case.  Thus, the O.Ps are directed for settlement of the insurance claim of the complainant by paying him the balance amount of Rs.7,09,170/-alongwith interest thereon @ 12% per annum with effect from 12.1.21 till the final payment is made and to pay  compensation for an amount of Rs.1,00,000/- towards his mental agony and harassment of the complainant as well as a sum of Rs.10,000/- towards his litigation expenses.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 2^nd day of January,2023 under the seal and signature of this Commission.   

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                         Sri Sibananda Mohanty

                                                                                                                     Member