IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 30th day of September, 2020
Filed on 14. 08. 2018
Present
1. Sri. Santhoshkumar Bsc. LLB(President)
2. Smt. C.K.Lekhamma.BA. LLB(Member)
In
CC/No.223/2018
Between
Complainant:- Opposite parties:-
Sri. Nowfal Nazar 1. HDFC Bank Ltd.
Mullasseril padeetathil House Retail Asset Operation
Cheravally Muri SL Plaza, 3rd Floor,
Kayamkulam Village Palarivattom, Cochin-682026
Kayamkulam.P.O Rep: by its Manager
Alappuzha-690 502 (Exparte)
(Adv.C.Parameswaran)
2. HDFC Ergo General Insurance.
Co. Ltd, Branch Office, 6th Floor Bishop Gerom Nagar, Chinnakkada
Kollam-691001
(Adv. Ramu.P.S)
O R D E R
SMT. C.K.LEKHAMMA (MEMBER)
Complaint u/s 12 of the Consumer Protection Act. 1986
1. Brief facts of the complainant’s case are as follows:-
The complainant is the son of Late Mr. Nazarudeen kunju. On 11/4/2016 the above said Nazarudeen had purchased a brand new car Hyundai CRETA, which was registered as KL-29L-50 by availing a vehicle loan for Rs. 10,00,000/-(Ten Lakh) from the 1st opposite party vide vehicle loan account No.39156860 for a period of 60 months. The loan amount is to be repaid in Equal Monthly instalments for Rs.22,920/-. While enquiring about the vehicle loan from the 1st opposite party, its Manager made Mr. Nazarudeen to believe that the HDFC company is doing personal and vehicle insurance also vide name HDFC ERGO General Insurance Company Ltd. Further that company has got a personal insurance scheme by name SARV SURAKSHA which ensures so many insurance scheme for a period of 5 years and the main attraction for the policy is that if the policy holder expires during the period of the SARV SURAKSHA insurance coverage, the family members will get an amount of Rs. 5,00,000/- and the outstanding dues to the vehicle loan account will be remitted directly to the financier/ bank by the 2nd opposite party.
The 1st opposite party had granted financial assistance and the same was insured with the 2nd opposite party by way principal agent relationship between the 1st and 2nd opposite party. The premium amount was served through the loan account of the complainant’s father maintained at the 1st opposite party. They assured the complainant and his deceased father that if the policy holder/ insured expires within the policy period, the nominee will get Rs. 5,00,000/-(Five lakh) and the company will discharge the outstanding dues to the vehicle loan account of the deceased policy holder/ insured as the credit shield insurance maintained with the 1st opposite party. The complainant and his father were shown the prospectus of the SARV SURAKSHA policy by the Manager of the 2nd opposite party.
The 1st opposite party had arranged said policy on 11/4/2016 vide Master Policy No. 2999201363863000 and certificate No. 2950 2013 72428800 000 by debiting the premium amount from the loan account of the complainant’s father. The validity of the policy was upto 10/4/2021 and the mother was shown as nominee for the insured Nazarudeen, while taking the policy, the insured had remitted a total amount of Rs. 6561/- out of which premium amount of Rs.547/- was paid for the insurance of Rs.5,00,000/-(Five lakh) against death of the insured and Rs.912/- was paid for the insurance of Rs.5,00,000/-(Five lakh) as credit shield insurance. While the policy is in force, Nazarudeen died on 16/8/2016 at Medical College Hospital, Vandanam due to cardio Pulmonory Arrest. After the death of Nazarudeen Kunju the complainant approached the 2nd opposite party several times being the legal heir of Nazarudeen kunju demanding to pay Rs. 5,00,000/- as the sum insured for the death of the insured and also to pay the outstanding dues to the 1st opposite party towards the vehicle loan. But the 2nd opposite party was evading from their obligation for one or other reason and at last on 22/2/2017 the complainant caused to sent a notice to the 2nd opposite party demanding to comply with the above said terms and conditions of the SARV SURAKSHA insurance policy in the light of the death of the insured. But inspite of the acknowledging of notice, the 2nd opposite party has neither cared to pay the insured amount to him or to the 1st opposite party bank nor to send any reply so far. The 1st opposite party is prompting to the complainant to remit the EMI of the vehicle loan by threatening that otherwise they will take possession of the car by any means. The 2nd opposite party is willfully and purposefully evading from its obligations as per the insurance policy after the death of Nazarudeen Kunju for its personal gain. The complainant and his family being afraid to such threatening, started to remit the EMI of the vehicle loan account of Nazarudeen with the 1st opposite party without any default up to the month of February 2017 though he is not obliged to pay the same as per the terms and conditions of the SARV SURAKSHA insurance policy of the 2nd opposite party.
The 2nd opposite party is legally obliged to settle the vehicle loan account of late Nazarudeen with the 1st opposite party. The complainant is entitled to get an order directing the 2nd opposite party to pay an amount of Rs.50,00,000/-(Fifty lakh) to the complainant being the legal heir of the Nazarudeen in the light of his death and also direct them to pay back the EMI’s that was already paid by the complainant to the 1st opposite party to the above said loan account No.39156860 from the month of August 2016 till February 2017. Now the 1st opposite party has demanded the complainant to clear off the loan at the earliest and further threatened that if it is not so done appropriate legal actions will be taken against him for the recovery of the same from the complainant and his assets. The complainant apprehends that the 1st opposite party will do the same at any moment to protect its interest suppressing the default and breach of trust committed by the opposite parties. The action of the opposite parties in not indemnifying the complainant from the loan amount availed by the Father of the complainant amounts to deficiency in service due to which the complainant was put to untold miseries and hardship. The opposite parties are liable to indemnify the complainant from the loan availed from the 1st opposite party by the complainant’s father. The complainant is also entitled to get compensation for the mental agony and suffering caused to him due to the aforesaid illegal acts of the opposite parties. Hence the complainant approaches this Commission for getting redress of his grievances.
2. Version of the 2nd opposite party is as follows:-
The complaint is barred by the principal of Res judiata, since for the same cause of action the mother of the complainant had filed a consumer complaint No.154/17 before this Commission u/s 12 of the Consumer Protection act. 1986. In the said case this opposite party filed written version and denying the allegations in the complaint. The same was dismissed by the Commission vide order dated 9/6/2017. After the dismissal of CC.No.154/17 suppressing the above fact the present case was filed by the son as Complainant. The complainant in the instant case has no locus standi to file the present complaint as he was not the nominee in the insurance policy in question. His mother Smt. Suni is the nominee in the policy and she has the Locus standi to file this complaint. The complainant is legally estopped from filing the present complaint and hence the same is liable to be dismissed inliminae.
Moreover this complaint is devoid of any merit and is covered by the judgment of the Hon’ble Supreme Court of India in New India Assurance Co. Ltd Vs. Satpal Singh Muchal(2009 (12) SCC pare 673). Since the complainant had suppressed material facts, such as treatment/ medical procedures undergone by the insured/deceased etc. The opposite party is not liable under the policy as there was suppression in material facts by the complainant.
This opposite party has issued Sarv Suraksha Policy (Sarv Suraksha Plus) for the period from 11/4/2016 to 10/4/2021 in the name of Mr. Nazarudeen Kunju M. The said policy is having eight coverage’s subject to the terms, conditions and limitation thereof. The complainant claiming the insurance amount for the death of the insured; in the head of critical illness. On 20/8/2016 immediately receipt of this claim requested the complainant to produce for processing the claim such as certificate from the treating doctor/ hospital stating ‘Cause of death and all treatment papers and investigation reports before death. The same was not complied by the complaint. Thereafter registered letters dated 26/9/2016 and 4/10/2016 to the complainant requesting her to produce the said documents which were mandatory for processing the claim. Till date the above mentioned documents were not submitted by the complainant to this opposite party. The claim had processed with available documents admitted on Medical College Hospital, Alappuzha on 16-8-2016 at 12.15 am with diagnosis of CAD (Coronary Artery Disease) with Acute AWMI (Acute Anterior Wall Myocardial Infraction) and he expired on 16/8/2016 at 2.30 am due to Cardio Pulmonatroy Arrest Ventricular Fibrillation.
As per head of critical illness in respect of the policy issued by this opposite party the insured amount is Rs. 1,00,000/-. For critical illness to be admissible under the policy, the insured person has to survive the period of 30 days from the time he was diagnosed for critical illness as stipulated in Sec.1 of policy conditions. The insured was admitted on the Medical College Hospital, Alappuzha on 16/8/2016 12.15. A.M and died on the same day at 2.30 A.M. Hence the opposite party is not liable to pay any amount to the complainant in the head of critical illness.
The complainant had also claimed the balance instalments in the loan account from the 2nd opposite party. The benefit of the outstanding loan amount will be under Credit Shield Insurance and the same will be paid only in case of accidental death or permanent disability. The claim under credit shield insurance was not claimed by the complainant in the claim form. In the event of accidental death or permanent total disability of the insured person during the policy period, the company will make payment. In this case the death of the deceased as per the claim form and documents submitted before Commission is Coronary Artery Disease. For violent and accidental death post mortem certificate is a mandatory document. As per the documents it is evident that the insured was admitted on Medical College Hospital, Alappuzha on 16/8/2016 and died on the same day. From the above documents it is crystal clear that the death of the insured was not due to any accidental death. Moreover in the certificate issued from Medical College Hospital, Alappuzha clearly stated that the death of the insured was due to cardio pulmonary Arrest, Ventricular Fibrillation (natural death). The natural death of insured will not come under the preview of policy. Hence this opposite party requested to submit the above documents by the complainant which was not complied. It also to be noted that the petitioner had also violated Sec.3.3 of the General Conditions issued in respect of the above policy. Further the terms and conditions of the policy also provide that the declaration shall form the basis of the policy of insurance. Hence repudiation of the claim is valid and was intimated to the complainant by this opposite party vide letter dtd.10/3/2016 and 21/10/2016 through registered post. The non submission of mandatory documents and suppression of material facts that is the non disclosure of the medical history of the insured would make the insurance policy void abinitio and this opposite party does not admit or incur any liability for the insured person under the policy.
The petitioner has approached this commission not with clean hands and the petition lack bonafides. There is no delay or inaction on the part of the insurance company in processing the claim as alleged by the petitioner. The petitioner is not entitled to any of the reliefs sought for in the petition. The petition is liable to be dismissed with costs. This opposite party had not committed any deficiency in service, unfair trade practice or caused any mental agony and inconvenience to the complainant. The complainant is not entitled to get any amount towards cost of proceedings or any other reliefs.
3. Both parties appeared through counsel. The complainant was examined as PW1 and Ext.A1 to A6 were marked. The concerned officer of 2nd opposite party examined as RW1 and Ext.B1 to B7 were marked. Both sides filed arguments notes. We have heard the learned counsel for both sides. The 1st opposite party remained exparte.
4. Points that arise for consideration are:-
1. Whether the complaint is maintainable?
2. Whether the complainant is entitled to get Accidental death benefits and credit shield Insurance from the opposite parties?
3. Compensation and costs?
5. Point No.1.
The 2nd opposite party averred that the complaint is barred by the principle of Resjudicata. Since for the same cause of action the mother of the complainant had filed a complaint No.154/17 before this commission and the same has been dismissed for default. As per the records IA.No. 28/2019 maintainability petition had filed by the 2nd opposite party with regard to the above said aspect. The same has been dismissed on 14/8/2018 and was found that the complaint is maintainable since the complainant in this case is another legal heir of the deceased Nazarudeen Kunju. It seems that the opposite parties did not file any appeal for challenging said order. In view of that we found the said point is in favour of the complainant..
6. Point No.2 &3:-
For the purpose convenience we are discussing both issues together.
The case of the complainant is that his father Nazarudeen had purchased a brand new car by availing vehicle loan of Rs. 10,00,000(Ten lakh) from the 1st opposite party and under the instigation of 1st opposite party he had taken “SARV SURAKSHA” insurance policy from the 2nd opposite party. According to the complainant Rs.6561/- was remitted as premium. During the period of policy coverage Nazarudeen died due to Cardio Pulmonory Arrest. Therefore the complainant is entitled to get the benefit under the policy as Accidental death benefit and credit shield benefit.
Ext.A1 is the prospectus of the policy, Ext.A2 is the policy conditions, Ext.A3 is the death certificate of Nazarudeen , Ext.A4 and Ext.A5 are the Acknowledge and Postal receipt and Ext.A6 copy of Medical certificate.
There is no dispute with regard to the issuance of policy and remittance of premium. The 2nd opposite party averred that the complaint is not maintainable since it is barred by principal of Res judicata. The said aspect has already been discussed in point no.1 and it is found in favour of the complainant.
The opposite party further averred that the complainant suppressed the medical reports of the deceased insured. According to the opposite party, the complainant is not entitled to get accidental death benefits and credit shield insurance since the Ext.B2 claim application by the nominee is asking for the benefit under critical illness. But the complainant is not eligible to get critical illness benefit also because as per the policy conditions the insured has to survive the period of 30 days from the time he was diagnosed for critical illness.
The case of the complainant is that as per the information obtained from 1st opposite party, the insured attracted the benefits of policy and happened to take the same. At the time of narrating the benefits of policy the complainant was present with the insured. On a perusal of Ext.A1 policy prospectus in which it is mentioned that “Composite coverage in a single policy” and given eight separate converges including “Personal Accidental and ‘Personal Accidental credit shield” There is no case that complainant did not remit premium. It seems that RW1, the officer of 2nd opposite party, agreed during the cross examination that under the instigation of 1st opposite party, insured had taken the policy. It seems that the 1st opposite party acting as an agent of 2nd opposite party. The concerned officers of 1st opposite party informed the details and conditions of policy to the complainant. They also made believe the complainant’s father that if the Accidental death caused during the policy coverage his legal heirs would get death benefits as well as credit shield insurance as per the policy. Moreover the contention made by the complainant is not denied by 2nd opposite party in their version. In the absence of specific denial amounts to admission. The counsel for the complainant enlightened us with a decision rendered by the Hon’ble Supreme Court reported in AIR 2017 SC 3995 (Jaspal kaur Cheema and Another Vs. M/s Industrial trade links and others etc.) in which it is discussed about the lack of specific denial in written statement and found that, defendant required to deny or dispute statements made in plaint, failure to make denial amount to admission. Therefore, we have no doubt about the contention of the complainant. It is crystal clear that 2nd opposite party insurance company is the subsidiary company of 1st opposite party bank. The 1st opposite party has insisted the loanee to take the policy so as to ensure the prompt repayment of the loan amount if the loanee succumbs to death.
According to the complainant once a promise made by the insurance company, 2nd opposite party, cannot step back from their assurance by one or other untenable reasons and contended that the said acts of 2nd opposite party is come under the purview of the rule of promissory estoppel envisaged in Sec.115 of the Evidence Act. In order to substantiate their part the learned counsel for complainant relying the classical decisions rendered by Hon’ble Apex court reported in AIR 1979 SC 621(M.P Sugar Mills Vs. State of Utter Pradesh) and AIR 1987 SC 590 (Pournami oil mills Vs. State of Kerala). Hence we have no hesitation to hold that the opposite parties are duty bound to comply the representations they had made to the insured.
We have already found that the insured has taken the policy under the impression that he and his legal heirs will get the benefits during his life time and after his death. Then the next question we have to decide is whether death of insured come under the preview of Accidental death benefit and credit shield insurance benefit?
In the instant case the 2nd opposite party agreed to indemnify the insured if he met with an ‘accident’. As per Ext.A6 the complainant admitted Medical College Hospital Vandanam, Alappuzha on 16/8/2016 due to ‘CARDIO PULMONORY ARREST’ on the same day itself, ie. within two hours , he died. There is no evidence before us that insured suffered any pre-existing disease at the time of taking the policy. Moreover, RW1 admitted in cross examination that no individual datas collected with regard to the health of the insured at the time of entering into the contract of insurance. In order to convince the meaning of the word “accident” or its adjective accidental death, the learned counsel for the complainant relied following decision rendered by the Hon’ble
National Commission in Ria Devi @ Rita Gupta Vs. National Insurance Co. ltd. Revision Petition No.973 of 2007. In which it is so held that “The word accident, or its adjective accidental, is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease of the natural progression of some constitutional physical or mental defect; but the ambit of what is included by the word is not entirely clear.” It has been said that what is postulated is the intervention of some cause which is brought into operation by chance so as to be fairly describable as fortuitous.
The idea of something haphazard is not necessarily inherent in the word; it covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being irrelevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The stand point is that of the victim, so that even willful murder may be accidental as far as the victim is concerned. Exposure to elements. Even where there are no antecedent circumstances which can be separately visualized and described as an accident, the results to the victim may nonetheless be accidental. Injury or death caused by lightning, sunstroke or earthquake has been held to be accidental. Even though the facts and circumstances of the case is different the case in hand but we cannot avoid the gist of interpretation of the word “accident” and the “accidental” by definition is inclusive of insured death in this case. The opposite party submitted the decision by Hon’ble Supreme Court in Alka shukla vs. Life Insurance Corporation of India in Civil Appeal No.3413/2019. The decision relied by the 2nd opposite party is not applicable to the facts of this case. In the instant case there is no evidence before us that insured shown any symptoms of heart ailment at the time of entering the contract and after. It seems his death occurred severe heart attack all of a sudden, without shown any preexisting symptoms, which leads to the death of the insured is an accident covered under the policy. Even though the claimant described the death as critical illness, it is only a mistake.
Moreover it is well settled law that when two reasonable interpretations of the terms of the policy are possible, the interpretation which favours the insured is to be accepted and not the interpretation which favours the insurer. According to the complainant the contract of insurance is to be interpreted based on the fundamental principle namely contra – profer-undum. The said principle is discussed in the above said decision.
The very purpose of insurance policy is to protect the deceased and the legal heirs. The policy document is the binding document of the insurer and the insured. After the death of insured, the insurance company (2nd opposite party) is not supposed to challenge the reason for the death of insured. It appears that the 2nd opposite party indulged in unfair trade practice caused to denied the insurance claim of the legal heirs of the laonee.
We have already found that the death of the insured is come under the preview of Accidental death. Therefore the legal heirs of the insured is entitled to get all benefits under the head of ‘accidental death’ and also entitled to get ‘credit shield insurance’ under the policy.
According to the complainant in the mean time after the death Nazarudeen they have paid Rs.1,60,640/-(One lakh sixty thousand six hundred and forty) towards loan account. This contention is not opposed by opposite parties. Therefore the complainant is entitled to get above said amount from the 1st opposite party. It seems that the complaint is filed by one of the legal heir of the insured. The nominee is the wife of the deceased. Hence the amount ordered with regard to the policy is given to the nominee in the policy and she has to collect the same and distribute to the other legal heirs. We have already ordered benefits as per policy to the complainant. Therefore, not ordering any compensation but the complainant is entitled to get litigation cost of Rs.5000/- (Five thousand) from the 2nd opposite party.
In the result we allow the complaint and direct as follows:-
1. The 2nd opposite party shall pay Rs. 5,00,000/-(Five lakh) as accidental death benefit to the nominee of the insurance policy belongs to late Nazarudeen and shall pay the EMIS paid by the complainant to the 1st opposite party for the period of August 2016 to February 2017 to the 1st opposite party and shall also settle the outstanding EMI if any, of vehicle loan of Nazarudeen’s account No. 39156860 with the 1st opposite party.
The above order shall comply within the period stipulated as mentioned below, failing which the said amount shall carry interest at the rate of 12% per annum from the date of complaint till realization.
2. The 1st opposite party shall refund the EMI that paid by the complainant to them from the month of August 2016 till February 2017 to the loan account No. 39156860.
3. The 2nd opposite party shall pay Rs.5000/- as litigation cost to the complainant.
The order shall be complied within one month from the receipt of a copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30th day of September , 2020.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri. S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Nowfal Nazar(complaiannt)
Ext.A1 - Copy of SARV SURAKSHA
Ext.A2 - Copy of Policy
Ext.A3 - Death Certificate
Ext.A4 - Copy of AD card
Ext.A5 - Copy of Postal Receipt
Ext.A6 - Copy of Certificate.
Evidence of the opposite parties:-
RW1 - Aneesh Bhaskaran(Witness)
Ext.B1 - Copy of Policy
Ext.B2 - Copy of Claim form.
Ext.B3 - Copy of petition CC.154/17
Ext.B4 - Copy of Order in CC.154/17
Ext.B5 - Copy of Policy details.
Ext.B6 - Copy of CLAIM REPUDIATION LETTER WITHOUT
PREJUDICE.
Ext.B7 - Copy of Power Attorney.
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
