Haryana

Panchkula

CC/215/2016

SUMAN AND OTHERS. - Complainant(s)

Versus

HDFC BANK LTD. - Opp.Party(s)

ROBIN SATHI

08 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                  

Consumer Complaint No	:	215 of 2016
Date of Institution	:	17.08.2016
Date of Decision	:	08.05.2017

 

1.       Suman, aged 37 years, w/o Late Sh.Rajesh Kasana,

2.       Gurleen minor aged 13 years, d/o Sh.Rajesh Kasana,

3.       Raj Aryan minor s/o Sh.Rajesh Kasana,

          Both minor complainants through their mother cum natural guardian,

4.       Bhajno w/o Late Sh.Mohinder Pal Kasana,

          All R/o House No.981, Sector-11, Panchkula.

                                                                                               ….Complainant

Versus

 

1.       HDFC Bank Ltd., SCO No.52, Sector-11, Panchkula through its authorized signatory.

2.       HDFC Ergo General Insurance Co. Ltd., SCO No.156-158, Madya Marg, Sector 8C, Chandigarh through its authorized signatory.

3.       HDFC Ergo General Insurance Co. Ltd., Registered & Corporate Office, 1^st Floor, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai-40020 through its authorized signatory.

                                                                                       ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.Jagmohan Singh, Member.

 

For the Parties:     Mr.R.S.Sathi, Adv., for the complainant. 

                             Mr.J.S.Maan, Adv., for the Op No.1.

                             Mr.Sachin Ohri, Adv., for the Ops No.2 and 3.

 

ORDER

(Anita Kapoor, Member)

 

1. The complainants have filed the present complaint against the Ops on the averments indicated hereunder.

Husband of the complainant hereinafter referred to as insured purchased a car Nissan Terrano which was got financed from OP No.1. On the advice of OP No.1, he obtained a policy from Ops No.2 and 3 in order to secure the loan. The Op No.1 further disclosed that the same would be beneficial for him as in case he expired during the currency of loan  the loan amount could be recovered through the Life Insurance Policy and the legal heirs of the deceased would not have to pay the remaining loan amount and the vehicle would remain in possession of the legal heirs of the deceased. On advice of OP NO.1, the deceased obtain the policy from OP NO.2 and loan of Rs.7,65,000 was sanctioned against the loan account No.270241948 in the name of deceased Rajesh Kasana for purchase of vehicle Nissan Terrano. Further, the deceased submitted the documents for issuance of policy to secure the repayment of the loan and the OP No.2 issued Policy No.2950200668006800000 under the plan Sarv Suraksha Policy which was valid from 27.01.2014 to 26.01.2019. The deceased also paid the one time premium of the policy as the policy was one time premium policy. The Op No.2 also issued a letter dated 27.01.2014 alongwith the policy papers in which it was clearly mentioned that The maximum tenure of this policy is years on your loan tenure, whichever is lesser. One time premium for this policy has been received by us, hence not required to pay any additional premium. Further it was also clearly mentioned in the policy that if the premium is not realized the policy shall be void from inception. It is hereby declared and agreed that from the policy start date, in the event of money payable under Section Credit Shield Insurance, the company shall make payment to HDFC Bank Ltd. to the extent of outstanding loan amount. Thereafter, The Op No.1 kept on deducting the EMI from the account saving account No.00611000245706  of the deceased maintained with OP No.1. The deceased never defaulted in the payment of EMI till April, 2016. Unfortunately, the deceased had expired on 30.04.2016 at Alchemist Hospital. Thereafter, the complainant No.1 being widow and nominee of the deceased made representation dated 03.05.2016 requesting that as the insurance plan against the policy of OP No.2 covered the risk, the remaining loan may be paid by the Ops No.2 and 3. The Op No.2, vide their letter dated 31.05.2016, asked the complainant to submit the claim on the proforma alongwith the documentation. The complainant submitted all the requisite documents as demanded and the proforma with the Ops but the claim of the complainant No.1 was repudiated by the Ops vide letter dated 15.06.2016 on the ground of non disclosure of Critical illness by the insured at the time of obtaining of the policy. This act and conduct of the Ops amounts to deficiency in service on their part. Hence, this complaint.

2. In reply, the Op No.1 filed written statement by taking preliminary objections such as maintainability concealment of facts, mis joinder and non joinder etc. Further it is submitted that the OP No.1 has acted according to the terms and conditions of Loan Agreement agreed upon between the deceased and the Op-Bank. It is submitted that the deceased husband of the complainant approached the OP NO.1 for a loan facility of Rs.6,56,438  and the same was disbursed vide loan account No.27024948 by the Op No.1 subject to the terms and conditions of the loan agreement. It is denied that any official of the OP No.1 persuaded the deceased to take the insurance policy. It is submitted that the insurance policy was purchased by the policy holder from Ops No.2 and 3 after duly executing the policy documents. It is submitted that the OP No.1 as a financial institution disbursed the loan to the deceased after execution of the loan agreement and it was entitled to recover the same. It is submitted that as per clause 10 of the loan agreement, the bank is entitled for the recovery of outstanding loan amount from the policy holder. It is submitted that if there was any dispute between the borrower and the insurance company, the bank was not responsible for the same. It is submitted that the Ops No.2 and 3 were two separate legal entities. It is submitted that as on 07.10.2016  there was total outstanding amount of Rs.4,10,479 which was payable by the borrower and the Op No.1 was entitled to recover the same. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of complaint with costs.
3. In reply  the Ops No.2 and 3 filed written statement by taking preliminary objections and averred that the deceased took Sarv Suraksha Policy through OP No.1 from the Ops No.2 and 3 w.e.f. 27.01.2014 to 26.01.2019 under policy No.2950 2006 6800 6800 000 against the premium of Rs.6438. It is submitted that insurance policy is a contract and both the parties are under obligation to obey/fulfill all the terms and conditions of the same. It is submitted that the legal heirs of the deceased lodged a claim for death of insured under the policy in question with the Ops No.2 and 3. It is submitted that the vehicular loan was taken by the insured/deceased from Op NO.1 for purchase of the vehicle and in order to secure the loan, the insured now deceased took the Sarv Suraksha Policy through Op NO.1 from the Ops No.2 and 3. It is submitted that policy alongwith terms and conditions were provided to the insured/deceased by the Ops No.2 and 3. It is submitted that claim of the complainant was repudiated by the Insurance Company vide letter dated 15.06.2016 on the ground that “as per case summary of the late Mr.Rajesh Kasana (Insured), he was suffering from Cirrhosis of liver, Decompensate Ascites, Umblical Hernia. All these aliments and treatment are on account of Alcohol.  The abovesaid decease was not covered in the critical illness section 1 of the policy’s terms and conditions. The relevant extract of the Section 1 is reproduced as under

Section 1 Critical illness

Under the critical illness, only below diseases are covered:

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 Sclerosis with persistent symptoms

8.       Surgery of Aorta

9.       Primary paralysis of limbs

The claim is even not payable as per specific exclusion clause under the policy which is as under:-

No payment will be made by the company for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to the use or misuse of intoxicating drugs and/or alcohol.

It is submitted that as per discharge summary of the deceased-Rakesh Kasana, it has been mentioned in diagnosis as Cirrhosis of liver. It is submitted that it was clear from the death summary that the deceased was alcoholic and death was occurred due to complications. It is submitted that the claim was payable only as per terms and conditions of the policy. It is submitted that the claim was analyzed by technical team of the Ops No.2 and 3 and found that claim was not payable under the terms and conditions of the policy. It is submitted that medical documents were required to analyze the claim as per terms and conditions of the policy. It is submitted that claim under the credit shield was payable only in case of accidental death or permanent total disability. Thus, there is no deficiency in service on the part of the Ops No.2 and 3 and prayed for dismissal of complaint with costs.

4. In order to prove his case, the counsel for the complainant tendered into evidence affidavit Annexure C A, alongwith documents Annexure C 1 to C 7 and closed the evidence. On the other hand, counsel for the Op No.1 tendered into evidence affidavit Annexure R1/A, alongwith document Annexure R1/1 to R1/3 and closed the evidence. Counsel for the Ops No.2 and 3 tendered into evidence affidavit Annexure R2/A, alongwith documents Annexure R2/1 to R2/3 and closed the evidence.
5. We have heard learned counsel for the parties and have gone through the case file carefully and minutely.
6. In the scheme of things envisioned under the Consumer Protection Act, evidence is support of their respective pleas is adduced by the parties by filing affidavits and the procedure for trial of a complaint does not admit of entertainment of disputed questions of fact which, quite naturally, would involve adducing of evidence and the testing thereof on the touchstone of cross examination. Having noticed that, we proceed to examine whether the affidavit-format based evidence adduced by the parties is receivable at law or not.

Insofaras the complainants are concerned, their grievance in the complaint is supported by affidavit Annexure CA of complainant Suman who is major and mother of minor complainants Gurleen and Raj Aaryan who were born to her from the loins of deceased Rajesh Kasana. Complainant No.4 is mother of deceased Rajesh Kasana. The affidavit is on appropriate format and, in the course thereof, the deponent has claimed competence to file it on behalf of self and the other complainants who are the only legal heirs of the deceased. The affidavit contains reiteration of each and every averment made in the complaint and having determinative bearing upon the grievance in the complaint.

7. As against it, the affidavits Annexures R1/A and Annexure R2/A, filed by Mr. Rajesh Bhatia and Mr. Pankaj Kumar, on behalf of OP No.1 and OP No.2 and 3 respectively are totally flawed because those do not even purport to be on the format required for an affidavit. A perusal thereof would indicate that Annexure R1/A and Annexure R2/A are verbatim reproduction of the written statement filed by the OPs. These affidavits, it is interesting to note, even make a mention of the ‘Preliminary Objections ON MERITS’ and averments purporting to be  On Merits. Annexure R1/A and Annexure R2/A cannot, thus, be said to be properly sworn affidavits. Those cannot, thus, be read in evidence. 
8. It may be noticed, even at the cost of repetition, that though the factum of the purchase of the impugned vehicle on the basis of a finance facility and the insurance as also the death of the insured during the currency of the operation of the impugned insurance policy are beyond the pale of controversy, the OPs have made a plea of repudiation on an averment that the insured did not disclose to them the multiple ailments he was suffering from prior to the period the policy was obtained and also at the time of obtaining thereof. While relying upon the relevant clause in the insurance policy, the OPs averred that repudiation was in order. Reliance, in support of the averment about the repudiation of the policy was placed upon III 2006 CPJ 377 NC  Gas Ghar Vs. Oriental Insurance Company Ltd., First Appeal No.188, 242 and 243 of 2003 decided by the Hon’ble National Commission on 28.10.2009, Revision Petition No.469 of 2006, decided by the Hon’ble National Consumer Disputes Redressal Commission on 19.10.2010 and 2011 ACJ 418 Suraj Mal Ram Niwas Oil Mills P Ltd. Vs. United India Insurance Company Ltd and anr decided by the Hon’ble Supreme Court of India on 08.10.2010.    
9. Firstly, the question of applicability or otherwise of the above indicated judicial pronouncements to the facts and  circumstances of this complaint would not arise because the affidavit-based evidence adduced by the complainants in support of each and every averment made in the complaint is not rebutted by legally acceptable affidavits. A presumption can, thus, be legitimately drawn therefrom, that the evidence adduced by the complainants is un-rebutted on behalf of the OPs to the present complaint.
10. While we take judicial notice of the fact that it is practically not feasible for an insured to go through the lengthy documentation which is presented by the insurer to the insured at the time of the insurance policy, it was open to the OPs to get the insured medically examined for exact ascertainment of his health status at the time of issuance of the impugned insurance policy. We would, in fact, say that it was ideal, nay compulsive, for the insurer to get the insured medical examined in order to find out there itself whether the insured was suffering from any health condition which could validate repudiation later on or which could validate the denial itself of the issuance of the policy. If any such facet of health condition existed, it was open to the insurer to decline the issuance of the insurance policy. The minimum measure of transparency and prudence would require an insurer to find out for itself the existence or otherwise of the health condition facets which, on detection at a subsequent point of time, would validate repudiation. For an insurer to rush into obtaining business without ascertaining the health status of an insured in an identical eventuality, would clearly be a case of un-fair trade practice and deficiency in service. It would not be out of place to notice here that it is not even the averment on behalf of the OPs that the insured had made any declaration about his being medically fit. There is also no averment that the insured declined to be having any health related problem at the time of obtaining of the impugned policy. Allowing the plea of repudiation made by the insurer would amount to compounding/validating a gross act of deficiency in service and also an act deserving the caption of an un fair trade practice.       
11. Yet another relevant fact to be noticed would be that there is no denial of the precise averment made by the complainants in Para 10 of the complaint that the OPs “illegally deducted three installments for the month of May, June, July, 2016 total amounting to Rs.43062 from the saving account no.00611000245706 of the deceased Rajesh Kasana illegally. That averment has not been controverted in the corresponding para of the written statement filed by OP No.1 as also OPs No.2 and 3. How could they claim validation for the deduction of installment even after the death of the deceased had been intimated to them defies logical comprehension. We are of the considered view that the OPs acted in a high handed and legally un-acceptable manner by having deducted installments from the savings account of the deceased even after his death had been intimated to them.
12. For the reasoning recorded herein-before, we have no hesitation in holding that the complainants have been able to prove that the OPs are accountable for adoption of un-fair trade practice and deficiency in service and the plea of repudiation put forward by them deserves to be negated and we do so accordingly. As a natural consequence thereof, it is ordered that
    1.  
    2.  
    3.  
    2.  

The OPs shall also issue a No Due Certificate qua the impugned loan amount and also issue relevant documentation facilitating the cancellation of the hypothecation endorsement on the Registration Certificate of vehicle bearing Registration No.HR 03 Q 9515.

In view of the fact that we are disposing of the complaint itself, we do not feel called upon to grant any independent orders in the matter of application filed by the complainant for restraining OP No.1 “from recovering the balance loan amount and re-possessing the vehicle during the pendency of the present complaint”. The command’s relief in the application would be deemed to have become in fructuous with the disposal of the complaint itself)

13. The OPs shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

08.05.2017 JAGMOHAN SINGH   ANITA KAPOOR     DHARAM PAL

                      MEMBER                   MEMBER                PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                          

                                                         ANITA KAPOOR

                                                          MEMBER