Chandigarh

DF-II

CC/518/2019

Mr. Kavungal Muralidharan - Complainant(s)

Versus

HDFC Bank Ltd. - Opp.Party(s)

Adv. Pankaj Chandgothia

20 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	518/2019
Date of Institution	:	06.06.2019
Date of Decision	:	20.04.2023

 

                     

            

 

Mr.Kavungal Muralidharan s/o late Sh.K.K.Panicker, House No.5684, Sector 38 West, Chandigarh -160036.

                 ...  Complainant.

Versus

 

1.  HDFC Bank Ltd., Plot NO.28, Industrial Area, Phase-I, Chandigarh -160002 through its Branch Manager.

 

2.  HDFC ERGO General Insurance Co. Ltd., SCO 124-125, Madhya Marg, Sector 8-C, Chandigarh 160008 through its Branch Manager.

 

3.  HDFC ERGO General Insurance Co. Ltd., 1^st Floor, HDFC House, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai-400020 through its M.D.

 

4.  Santokh Hospital, # 846, Sector 38-A, Chandigarh through its Doctor Sh.Rajiv Gupta.

 

…. Opposite Parties.

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Pankaj Chandgohita, Counsel of complainant Sh.Ajit Singh, Adv. Proxy for Sh.P.M.Goyal, Counsel of OP No.1 Sh.Nitesh Singh, Counsel of OPs No.2 and 3. OP No.4 exparte.

   

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The complainant has filed the present complaint under provisions of the Consumer Protection Act, 1986, as amended up-to-date alleging therein that he is consumer of the OPs as he is having bank account with OP No.1. The complainant applied for a loan of Rs.5.00 lakhs with the OP Bank for purchase of the vehicle. The OP No.1 sanctioned the loan of Rs.5,06,590/- vide sanction letter dated 22-10-2016 (Annexure C-1). At the time of granting loan, OP-Bank forced the complainant to take insurance policy namely Sarva Suraksha Plus” (Annexure C-4) from the sister concern (OPs No.2 and 3) against the premium of Rs.6590 /-, which was deducted from the loan amount itself by the OP-Bank. A further perusal would shows that the agent of OP No.2 for the purpose of the policy was OP No.1 i.e. Bank itself. The Bank, therefore, further benefited by earning commission on the sale of the policies, which amounts to unfair trade practice. The complainant further alleged that earlier the complainant took a personal loan from OP-Bank which was sanctioned and granted on 08-06-2016, for Rs.1,09,000/- and at that time also, the OP-Bank forced the complainant to take an insurance policy namely “Serv Suraksha Pro” from their sister concerns i.e. OPs No.2 and 3, against the premium of Rs.2170/- which was deducted from the loan amount itself by the OP-Bank. A further perusal would show that the agent of OP No.2 for the purpose of the policy was OP No.1-Bank itself. The complainant has further stated that unfortunately in the month of January 2019, he suddenly suffered critical kidney failure for which, he was hospitalized in Sandhu Hospital sector 38 Chandigarh on 07.01.2019 and discharged on 15.01.2019. The said critical illness is duly covered under both the insurance policies issued by OPs. The complainant filed the respective claim forms under both the policies separately to claim the benefits as available under the policies. Under the policy (Annexure C-4), the OPs are liable to pay fixed sum assured of Rs.1,00,000/- under critical illness coverage. Similarly under policy (Annexure C-6), the OPs are liable to pay Rs.1,00,000/- under the head of critical illness coverage. The complainant is further entitled to an additional sum of Rs.1,00,000/- as sum insured towards loss of job besides sum insured for Rs.5,00,000/- each under the head “Credit Shield Insurance”.  However, the OPs mechanically rejected the claim without applying their judicious mind vide Annexure C-10 on the ground that the complainant has suffered hypertension since 18 years and diabetes before the policy start date. According to the complainant, the OPs illegally rejected the claim as there is neither medical report to that effect nor hypertension or diabetes can be said to be that cause of kidney failure. The complainant alleged that the OPs are also liable to pay/reimburse EMI’s due since January 2019 on both the loans to the complainant as same were paid by him. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to pay the claim of Rs.9 lakhs under the policies issued by OP No.2 under the agency of OP No.1 and to reimburse EMIs paid by him to the bank since January 2019 on both the loans along with compensation for mental and physical harassment and litigation expenses.
2.     After the service of notice of complaint upon the OPs, they appeared before this Commission and filed their respective written versions to the complaint.  At the very outset, OPs No.1 and 2 denied all the averments and contentions made by the complainant in the complaint against them. They took preliminary objections inter alia that the complainant has not approached this commission with clean hands; the complaint is not maintainable; there is no deficiency in service or unfair trade practice on the part of the opposite parties; the complaint has been filed with mala fide intention; the complainant does not fall within the definition of the consumers; this commission has no jurisdiction to try and decide the present complaint; the allegations levelled by the complainant involved  complicated question of law and facts which cannot be adjudicated in the summary trial before this Commission but the matter needs to be tried in full scale trial before the civil court of competent jurisdiction; the complaint is barred by limitation; the complainant has no locus standi and cause of action to file the present complaint. On merits, it has been stated that the claim is not covered under the critical illness under the insurance policies as the complainant has been suffering from diabetes last 18 years which is before the inception of the policy which is clearly mentioned in the discharge summary of the treating hospital.  The treating doctor in the hospital notes clearly stated that the patient is a known case of type 2 DM for last 18 years and on regular medication, probable cause of chronic kidney disease is T2DM.  It has further been stated that the complainant neither suffered as accidental death nor contracted any permanent total disability and as such the claim under the credit shied is not payable.  It has further stated that the complainant had to resign from his job due to his poor health conditions and as per the terms and conditions of the insurance policy, loss of job due to any reason other than retrenchment is excluded from the purview of the policy.  It has further been stated that the claim was rightly repudiated as per the terms and conditions of the insurance policy. The remaining allegations levelled by the complainant have been denied by OPs No.2 and 3. Lastly OPs No.2 and 3 prayed for dismissal of the complaint against them.
3.     In its separate written version, OP No.1 has not denied the facts with regard to availing of the loan by the complainant. However, it has been stated that the complainant is aggrieved against the rejection of the claim by the OPs No.2 and 3 and it has no concern with the same. It has been denied that they have forced the complainant to purchase the policies from OPs No.2 and 3 or that OPs No.2 and 3 are the sister concerns of OP No.1. It has been stated that OP Bank and the Insurance Company are two different entities, with completely different management and roles.  It has been stated that there is no deficiency in service on its part. Lastly OP No.1 prayed for dismissal of the complaint against it.
4.     Despite due service through registered post, OP No.4 failed to put in appearance and as a result thereof it was ordered to be proceeded against exparte vide order dated 30.07.2019.
5.     Parties filed their respective affidavits and documents in support of their case.
6.     We have heard the Counsel for the parties  and have gone through the documents on record.
7.     The main issue involved in the present complaint is whether OPs No.2 and 3-Insurance Company repudiated the claim of the complainant, wrongly and arbitrarily or not?
8.     In order to find out answer to this question, the issue involved in the present case is discussed as under.
9.     The complainant approached OP No.1-Bank for a loan of Rs.5.00 lakhs for the purchase of vehicle, which was granted to the tune of Rs.5,06,590/- and at the time of granting the loan, OP No.1-Bank forced the complainant to take an insurance policy namely “Serv Suraksha Plus”. from their sister concern OPs No.2 and 3-Insurance Company. The copy of certificate of insurance dated 24.10.2016 was placed on record Annexure C4. The complainant paid a premium amount of Rs.6590 to OP No.2 being agent of OP No.1-Bank. Earlier the complainant availed a personal loan of an amount of Rs.1,09,000 from OP No.1-Bank, which was sanctioned and granted on 08.06.2016 and OP No.1-Bank then also forced him to take an insurance policy against premium of Rs.2170 namely “Serv Surakshaa Pro” from OPs No.2 and 3-Insurance Company. The copy of certificate of insurance dated 09.06.2016 is annexed as Annexure C-6. it is an admitted fact that complainant availed both these insurance policies but OPs No.2 and 3-Insurance Company repudiated the claim vide Annexure C-10.
10.     The repudiation letter (Annexure C-10) states  as under:-

  “As per the claim documents, insured suffered from chronic kidney disease in k/c/o case of chronic diabetes. The date of inspection of policy is 24.10.2016 and the insured suffered hypertension since 18 years. As the insured was suffering from diabetes before the policy start date and chronic kidney disease is a complication of long-standing diabetes; the ailment is pre-existing in nature. Hence, this claim is being repudiated under section 3C(1) of the policy, terms and conditions.”

11.     OPs No.2 and 3-Insurance Company repudiated the claim of the complainant because the complainant has history of chronic kidney disease, type 2 DM and hypothyroidism. The copy of the discharge summary of the complainant and letter dated 28.04.2019 was annexed as Annexure -D & E respectively. The perusal of the said repudiation letter reveals that the insurance company rejected the claim on the ground that the complainant was suffering from hypertension since 18 years and also suffered from diabetes before the policy start. The aforesaid grounds of repudiation of claim of the complainant are wrong and arbitrary because there is neither any medical record placed on file nor any affidavit of the concerned treating doctor tendered by way of evidence. In the absence of any affidavit of the concerned doctor or his examination in chief placed on record, it cannot be said that OPs No.2 and 3-Insurance Company  have proved that the complainant was suffering from hypertension for the last 18 years or diabetes as alleged.
12.     In New India Assurance Co. Ltd. Vs. Arun Krishan Puri, III(2009) CPJ 6 (NC), it was held that onus to prove the pre-existing disease of the insured at the time of taking the policy lay on the insurer. Further in the absence of verification of discharge summary by the doctor, who treated /issued the same, no reliance can be placed on it. In the absence of such evidence, the repudiation of the claim by the OPs cannot held to be justified.
13.     Moreover, OPs No.2 and 3-Insurance Company have failed to prove on record that the hypertension and diabetes have direct cause of kidney failure. In the present case, the onus of the proof lies upon OPs No.2 and 3-Insurance Company, which they failed to discharge. Even if for the sake of arguments, it is presumed that complainant is suffering from hypertension and diabetes then also it is not fair on the part of OPs No.2 and 3-Insurance Company  to repudiate the claim.  The Hon’ble Supreme Court in the case Biman Krishna Bose Vs. United India Insurance Company, civil Appeal No.3438 of 1995, has held that that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.3619 of 2013 – Satish Cahnder Madan Vs. M/s. Bajaj Allianz General Insurance Co. Ltd., decided on 11.1.2016 has held that “Hypertension is a common ailment and it can be controlled by medication – Claim was wrongly repudiated.”  

        The Hon’ble Supreme Court as well as Hon’ble National Consumer Disputes Redressal Commission, while adjudicating the matter on this substantial issue of repudiation of claim on the basis of suffering from Hypertension of insured person, has categorically ruled that Hypertension is not a material disease and is manageable by medication/meditation, change of life style etc. and as such, cannot be a ground for rejection of genuine claims.

        Further, we draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission, Punjab has held as under:-

    “So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

        We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that “maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease”.

14.      In such a situation, the repudiation made by OPs No.2 and 3 regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

    “It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

15.     The complainant has claimed that the OPs are liable to pay sum assured of Rs.1,00,000/- under the head of critical illness coverage as he has been given policy to be paid Rs.1,00,000/- on account of suffering from any critical illness. As the complainant has suffered from critical illness of kidney failure for which he was hospitalized on 07.01.2019 and discharged on 15.01.2019, so he is entitled to Rs.1,00,000/- on account of critical illness and OPs No.2 and 3 are liable to pay the fixed sum assured to the tune of Rs.1,00,000/- under the critical illness coverage to the complainant under the policy (Annexure C-4).

        The complainant has also claimed a sum of Rs.5,00,000/- each under the head of “permanent total disability/permanent partial disability” of the insurance policies in question. It is clear from the medical record of Santokh Hospital, A Multispecialty Hospital, Chandigarh that the kidneys of the complainant failed due to his disease and as such, it can be safely concluded that the case of the complainant falls within the ambit of Permanent Partial Disability.  The relevant part of the welcome letter dated 24.10.2016  (Annexure C-4) reads as under:-

“Your insurance provides following coverage & Benefits:-

 

1. Loss of job (3 EMI)	2. Accidental Death	3. Permanent Total Disability/Permanent Partial Disability.
4. Accidental Hospitalization	5. Critical illness	6. Credit Shield Insurance
7. Garage Cash	8. Householders Coverage”.

         The perusal of the certificate of insurance attached with welcome letter (Annexure A) shows that the complainant is entitled to get Rs.5,00,000/- under the “permanent total disability/permanent partial disability”.  Since, the complainant has proved to be suffered from permanent partial disability and as such he is held entitled to sum assured of Rs.5.00 lakhs from OPs No.2 and 3.  Besides this, the complainant is also held entitled to get the benefit under the head of “credit shield” upto the sum assured of Rs.5.00 lakhs.

16.          The complainant has also claimed a sum of Rs.1,00,000/- as sum insured towards “loss of job”. The plea of OPs No.2 and 3 is that the complainant is not entitled to this amount as the loss of job due to any reason other than retrenchment is excluded from the purview of the policy. In our considered view, since the complainant had to resign from his job owing to his ailment/disease due to which he is unable to continue his services and therefore, the complainant is held entitled to sum insured of Rs.1,00,000/-.
17.     The complainant is not entitled to the benefit of double insurance as a contract of insurance is always continues to be one for indemnification of the defined loss, no more no loss. In the case of specific risks, the insured cannot profit and take advantage of double insurance.
18.     In view of the above discussion, we have no hesitation to observe that OPs No.2 and 3 have wrongly and arbitrarily repudiated the claim of the complainant.
19.     Consequently, the present complaint deserves to be partly allowed qua OPs No.2 and 3 and the same is accordingly partly allowed. OPs No.2 and 3 are directed to pay Rs.7,00,000/-  (i.e. Rs.1,00,000/- on account of critical illness, Rs.1,00,000/- on account of loss of job and Rs.5,00,000/- on account of permanent partial disability) to the complainant, along with interest @ 9% p.a. from the date of repudiation of the claim i.e. 17.05.2019 (Annexure C-10) till date of its actual realization.  They are also directed to pay the loan EMIs to OP No.1-HDFC Bank Ltd. on behalf of the complainant from the date of his illness i.e. January, 2019 upto the maximum sum assured of Rs.5,00,000/-. OP No.1-bank is also directed to refund to the complainant the amount paid by the complainant on account of EMIs since 2019 till the date of last payment upto maximum amount of Rs.5,00,000/- (Rupees Five Lakhs only). OPs No.2 and 3 are also directed to pay lump sum compensation of Rs.25,000/- to the complainant on account of mental tension and harassment and litigation expenses.
20.     This order be complied with by OP No.1, OPs No.2 & 3, within 60 days from the date of receipt of its certified copy.
21.     The complaint qua OP No.4 stands dismissed as there is no deficiency in service on their part.
22.     The pending application(s), if a+ny, stands disposed of accordingly.
23.     Certified copy of this order be communicated to the parties, as per rules. After compliance file be consigned to record room.

	Sd/-	Sd/-
Announced in open commission	(B.M.SHARMA)	[AMRINDER SINGH SIDHU]
20/04/2023	MEMBER	PRESIDENT