Haryana

Karnal

CC/52/2020

Naresh Kumar - Complainant(s)

Versus

HDFC Bank Limited - Opp.Party(s)

J.S. Mandhan

11 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                      Complaint No. 52 of 2020

                                                      Date of instt.22.01.2020

                                                      Date of Decision: 11.01.2024

 

Naresh Kumar aged about 40 years son of Shri Rajpal, resident of H.No.279, Opposite Jindal Park, Mani Ram Chunna Bhatti, Yamuna Nagar.

                                       …….Complainant

                                              Versus

 

1. HDFC Bank Limited, Branch (Retail Loan Services), SCO 2-3, First Floor, Main Market, Sector-8, HUDA, Karnal, through its Branch Manager.
2. HDFC ERGO General Insurance Company Limited, Branch Office situated at 2^nd Floor, SCO No.237, Sector-12, Karnal, through its Manager.                                                                                                                                     …..Opposite Parties.

       

Complaint Under Section 12 of Consumer Protection Act, 1986.

 

Before    Shri Jaswant Singh……President.

              Shri Vineet Kaushik……….Member

              Dr.Suman Singh, ………….Member

          

Argued by: Shri J.S.Mandhan, counsel for the complainant.

                  Shri Amit Munjal, counsel for OP No.1.

                  Shri Sanjeev Vohra, counsel for OP No.2.

 

                  (Dr.Suman Singh, Member)

ORDER:     

 

  The complainant has filed the present complaint Under Section 12 of Consumer Protection Act (now Section 35 of Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the father of complainant namely Rajpal son of Shri Juglal had purchased a vehicle car make Maruti Vitara Breeza bearing registration No.HR05AY-8800, chassis No.MA3NYFB1SJG409684, Engine No.D13A-3353519, model 2018 on credit basis and the same vehicle had been hypothecated with HDFC Bank Ltd. i.e. OP No.1. At the time of purchase of said vehicle and hypothecation of vehicle in question, the OP No.1 got insured the insurer with OP No.2 vide master policy No.2999201363863002, certificate No.2950-2023-2786-7800-000 in other words the father of complainant has been insured during the tenure of loan. The official of OP No.1 told the complainant and his father that during the period of paying the installments of vehicle, if father of complainant expires in any manner or due to critical illness then the legal heirs had no need to pay the remaining installments of vehicle as the remaining installments will be paid by the OP No.2. For that purpose OP No.1 received premium amount from the father of complainant i.e. total Rs.6761/-. It is hard luck of complainant, that father of complainant expired on 19.10.2019 in Amritdhara Hospital, Karnal due to critical illness i.e. cardiac arrest secondary to septic shock. Thereafter, complainant approached the official of OPs and submitted his claim to exempt the remaining installments of financed vehicle as the father of complainant had expired due to critical illness and as per the policy, the remaining installments should be exempted and further requested to issue no dues certificate in favour of the complainant but the official of OPs has not given any positive response to the complainant and also postponed the matter on one pretext or the other. The OPs have not passed the claim of complainant by saying that no such type of policy had been purchased by the father of complainant and hence the complainant has to pay the whole installments of loan amount. Due to the refusal of OPs, the complainant served a legal notice dated 30.11.2019 to the OPs through his counsel with the request to pass the claim of complainant, the said legal notice has been duly served upon the OP No.1, but neither the OP No.1 passed the claim of complainant nor given any reply to the said legal notice. Hence, the complainant was left with no other alternative except to file the present complaint before this Hon’ble Commission.

2.             On notice, OP no.1 appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; locus standi; cause of action, etc. On merits, it is pleaded that an amount of Rs.765034/- was financed to Shri Rajpal Nuglal by OP for purchasing of vehicle Vitara Breeza VDI. Borrower has to repay the same in 60 installments of Rs.15,974/-starting from 05.09.2018 till 05.08.2023. For getting vehicle on finance borrower executed a loan agreement after understanding the terms and conditions of the same. On 06.01.2021, amount of Rs.1,35,006/- is due apart from future installments. OP reserve his right to recover the same as per law either from insurance company or from the complainant. The OP adhered to the terms of the agreement and discharged all its obligations by providing the services; as agreed. The borrower opted to purchase insurance policy accordingly, the OP facilitate the borrower. To honour or not honour the claim of insurer comes under the review of OP No.2 as per the terms and conditions agreed between insurance company and borrower. The OP No.1 has legal right to recover his money from the legal heirs.  The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.              OP No.2 appeared and filed its written version raising preliminary objections regarding cause of action, concealment of true and material facts, jurisdiction, cause of action, etc. On merits, it is pleaded that policy bearing No.2950 2023 2786 7800 000 valid from 23.07.2018 to 22.07.2023 was issued by the OP subject to its terms and conditions, which were never disputed by the insured. The policy was issued upon the sweet will of the insured. Further the policy as opted by the deceased was issued covering the risk of insured and through this policy his life was not insured. Policy issued to the insured is a benefit policy and not a compensation policy which is issued covering the death, unlike Life Insurance Policy. As per Death Summary issued by Amritdhara Hospital, the insured was admitted with complaints of Fever, Anorexia, loose motion, pedal Edema and cough with expectoration. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of Naresh Kumar Ex.C1, copy of notice Ex.C2, copy of insurance policy Ex.C3, copy of cheque Ex.C4, copy of KYC application form Ex.C5, copy of death certificate Ex.C6, copy of aadhar card Ex.C7, copy of PAN card Ex.C8, copy of RC of car Ex.C9, copy of treatment documents Ex.C10 and closed evidence on 20.07.2022, by suffering separate statement.

6.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Gagandeep Singh, authorized representative of HDFC Bank Ex.OPW1/A, copy of statement of account Ex.OP1, copy of agreement Ex.OP2 and closed the evidence on 04.01.2023 by suffering separate statement.

7.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Manoj Kumar Prajapati as Ex.RW2/A, copy of treatment record Ex.R1, copy of repudiation letter Ex.R2 and copy of policy Ex.R3, and closed the evidence on 05.06.2023 by suffering separate statement.

8.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for the complainants while reiterating the contents of the complaint, has vehemently argued that father of complainant namely Rajpal son of Shri Juglal had purchased a vehicle car make Maruti Vitara Breeza bearing registration No.HR05AY-8800, on credit basis and the same vehicle had been hypothecated with HDFC Bank Ltd. i.e. OP No.1. OP No.1 got insured the insurer with OP No.2. Unfortunately, father of complainant had been expired on 19.10.2019 in Amritdhara Hospital, Karnal due to critical illness i.e. cardiac arrest. Thereafter, complainant approached the official of OPs and submitted his claim to exempt the remaining installments of financed vehicle as the father of complainant had expired due to critical illness and as per the policy, the remaining installments should be exempted and further requested to issue no dues certificate in favour of the complainant but the official of OPs first postponed the matter and finally OP No.2 repudiate the claim of the complainant on false and frivolous ground. Neither the OP No.2 explained the terms and conditions of the insurance policy nor supplied the same to the complainant or his father. Thus, there is deficiency in service on the part of OPs and prayed for allowing the complaint.

10.           Per contra, learned counsel for OP No.1 while reiterating the contents of the written version has vehemently argued that as per terms and conditions of the loan agreement, the OP No.1 has every right to recover the loan amount either from the complainant or from the OP No.2. Hence, prayed for dismissal of complaint qua OP No.1.

11.           Per contra, learned counsel for OP No.2 while reiterating the contents of the written version has vehemently argued that the deceased/insured died due to cardiac arrest and such ailment is not covered under critical illness as per the terms and conditions of the policy, therefore, the OP No.2 is not liable to pay the remaining loan amount to the OP No.1. Thus, there is no deficiency in service and unfair trade practice on the part of OP No.2. Hence, prayed for dismissal of the complaint.

12.           We have duly considered the rival contentions of the parties.

13.           Admittedly the father of the complainant had purchased a car which was hypothecatedn from OP No.1 It is also admitted that in order to secure his loan, the father of the complainant has purchased an insurance policy from the OP No.2. It is also admitted that during the subsistence of the policy, the father of the complainant died. 

14.           The claim of the complainant has been repudiated by the OP No.2 vide letter dated 04.11.2019  Ex.R2, on the following ground which is reproduced as under:-

“We would like to draw you attention, your claim has been declined due to below mentioned reason which is the basis for disallowing the claim, an extract of which is mentioned below for your ready reference:

As per the submitted documents, the insured expired on 13.10.2019 due to Sudden Cardiac Arrest. As the said ailment is not covered under the Critical Illness included under Section 1 of policy terms and conditions, the claim is being repudiated. (Please refer to disease covered under Section 1 : Critical illness 1 First Heart Attack of specified severity 2. Open Chest CABG 3. Stroke resulting in permanent symptoms 4. Cancer of specified Severity 5. Kidney failure requiring regular dialysis 6. Major Organ/Bone marrow Transplant 7. Muyltiple Sclerosis with persistent symptoms 8.Surgery of Aorta 9.Primary Pulmonary Arterial Hypertension 10.Permanent Paralysis of limbs).”

 

15.           The claim of the complainant has been repudiated by the OP No.2 on the ground that insured expired on 13.10.2019 due to Sudden Cardiac Arrest. As the said ailment is not covered under the Critical Illness included under Section 1 of policy terms and conditions. First of all, the complainant has alleged that the OP has neither explained the terms and conditions of the insurance policy nor supplied the same either to the complainant or his father. The onus to prove the fact that the terms and conditions were explained and supplied to the insured was relied upon the OPs but OPs have miserably failed to prove its version by leading cogent and convincing evidence. Had it been delivered by the OPs as alleged by them, he would have placed on file, the receipt or any other document in respect of supply of the policy to the complainant. In this regard, we relied upon case titled as New India Assurance Co. Ltd Versus Anil Manglunia 2016 (1) CPR 150 (NC),wherein Hon’ble National Commission held that OPs failed to provide policy clause to the complainant and rejected genuine claim of the complainant. Hence, they do not find any merit in the revision petition and the same is hereby dismissed.

16.           Moreover, if it is presumed that the terms and conditions were supplied to the insured, in that case also, in the entire terms and conditions (Ex.R3), there is no mention that the cardiac arrest does not fall in the definition of critical illness. The critical illness described in the terms and conditions are as under:-  

1.     First Heart Attack of Specified Severity.

2.     Open Chest CABG

3.     Stroke resulting in Permanent symptoms.

4.     Cancer of specified severity.

5.     Kidney failure requiring regular dialysis.

6.     Major organ/bone marrow transplant.

7.     Multiple Scierosis with persistent symptoms.

8.     Surgery of Aorta.

9.     Primary Pulmonary Arterial Hypertension.

10.   Permanent Paralysis of Limbs.

 

17.           As per the terms and conditions issued by OP No.2 heart attack covers in the critical illness. The insured had died due to cardiac arrest. The heart attack and the cardiac arrest are approximately same thing, rather the cardiac arrest is more dangerous than the heart attack. If the heart attack comes under the critical illness than as to why the cardiac arrest does not comes in the definition of critical illness. Moreover, in the entire terms and conditions Ex.R2, there is no mention that cardiac arrest is not covered in the insurance policy. The difference between cardiac arrest and the heart attack are as under:-

“A heart attack is when one of the coronary arteries becomes blocked. The heart muscle is robbed of its vital blood supply and, if left untreated, will begin to die because it is not getting enough oxygen. A cardiac arrest is when a person's heart stops pumping blood around their body and they stop breathing normally.”

18.           Hence, the plea taken by the OP No.2 that the cardiac arrest does not come under the definition of critical illness is having no force.

19.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and while giving claim amount, they make such type of excuses. It appears that OP No.2 has repudiated the claim of the complainant on the basis of flimsy grounds. Thus, the repudiation of the claim of complainant is arbitrary and unjustified. In this regard we are relying upon the authority of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, wherein it has held that:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

20.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the complaint, we are of the considered view that the act of the OP No.2 amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant.

21.           The deceased had availed loan facilities from the OP No.1. It is financier who has first right to recover the loan amount. Hence, the awarded amount be paid to the OP No.1 (being financier) by the OP No.2 (being insurer). 

22.           In view of the above discussion, we allow the present complaint and direct the OP No.2 (being insurance company) to pay the remaining loan amount to OP No.1 (pending from the date of death of insurer i.e. 19.10.2019). If the loan amount has been deposited by the complainant to OP No.1 after the death of insured, then OP No.2 is directed to refund the remaining loan amount after 19.10.2019 alongwith interest @ 9% from the date of filing of complaint till its realization to the complainant and issue NOC and return all the documents taken at the time of obtaining loan from the insured. We further direct the OP No.2 to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 11.01.2024                                                                   

                                                          President,

                                             District Consumer Disputes

                                             Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

    Member                         Member