For the Complainant : Mr. Kamble, Advocate
For the Opposite Party nos.1 & 2 : Smt.Bhuptani\, Representative
Advocate
For the Opposite Party nos.3 : Mahesh Menon & Co.,
Advocates
-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-
Per :- Mr. J. L. Deshpande, President Place : Bandra
-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-
::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Opposite party no.1 is Insurance Company and the Opposite party no.2 is Officer of the Opposite party no.1. The Opposite party no.3 is Finance Institution which offers Home Loans to its needy customers. The Complainant’s Husband –Mr. Dinesh Hukumchand Gupta had purchased flat at Nasik by raising loan in sum of Rs.10,00,000/- from the Opposite party no.3-HDFC Home Loans Limited. The Complainant’s husband used to make payment of monthly installment in sum of Rs.10,292/- to the Opposite party no.3-Financial Institution.
2 After raising the loan and as per the scheme of the Opposite party, the Complainant’s husband had purchased Insurance Policy from the Opposite party no.1 which was known as HDFC Standard Life Insurance Company. The Complainant had paid premium of the policy. As per the terms of the HDFC Home loan protection Scheme, on death of the policy holder out standing amount of the loan by way of installments is paid by Insurance Company to the Financer.
3 The Complainant’s husband died on 26.07.2007. On death of the Complainant’s husband, the Complainant informed the Opposite party no.3 and requested to receive the payment as per the policy. Then the Complainant contacted the Opposite party no.1-Insurance Company. However, vide, letter, dated, 28.12.2007, the Opposite party no.1 repudiated the claim of the Complainant on the ground that the Complainant’s husband was suffering from “Hypothyroidism with hypertension and minimal change Nephrotic Syndrome prior to applying for the above mentioned Policy”. Thus, Insurance Company repudiated the claim on the ground that the Complainant’s husband died of pre-existing disease which fact was suppressed by the Complainant’s husband while obtaining the policy.
4 The Complainant then entered into correspondence with the Opposite parties and finally, she sends legal notices to the Insurance Company as well as Financer and requested them to complete the transaction as per the terms incorporated in the Insurance Policy. When the request was not complied with, the Complainant filed present complaint on 29.09.2008 making allegations of deficiency in service on the part of the Opposite parties and recovery of compensation in sum of Rs.15,00,000/- and directions to the Insurance Company to pay and clear all the installments of home loan as per the Insurance Policy.
5 The Opposite party no.3- HDFC Limited, filed their written version of defence and admitted that the Complainant’s husband had availed home loan in sum of Rs.10,00,000/- on 29.03.2005. According to the Opposite party no.3, the Complainant’s husband had also taken HDFC Home Loan Protection Flat Insurance Policy from the Opposite party no.1 and sum assured was Rs.10,00,000/-. The Opposite party no.3 –HDFC Limited was not party to the said contract. According to the Opposite party no.3, they are entitled to recover the out standing home loan amount and they have no concerned with the agreement between the Complainant’s husband and Insurance Company.
6 The Opposite party no.1-Insurance Company filed separate written version of defence and admitted that the Complainant’s husband had taken policy in sum of Rs.10,00,000/- and had paid premiums. According to the Opposite party no.1, date of commencement of the policy was 30.12.2006, whereas the Complainant’s husband died on 19.07.2007 i.e. within 7 months of commencement of the Policy. Considering the short duration of the policy the matter was investigated by the Opposite party no.1-Insurance Company and it revealed that the Complainant’s husband was suffering from “Hypothyroidism with hypertension and minimal change Nephrotic Syndrome prior to Insurance Policy”. Thus the Complainant has suppressed material fact while taking the Insurance Policy. The Opposite party no.1 –Insurance Company referred to section-45 of Insurance Act, 1938 and submitted that because of suppression of the material fact contract of Insurance was void.
7 Along with the written version of defence, the Opposite party no.1-Insurance Company produced certain case papers and copies of the treatment sheet about the treatment received by the Complainant’s husband before his death.
8 The Complainant filed her affidavit of evidence whereas the Opposite parties no.1 and 2 filed affidavit of their Officer- Mr.Raj Kiran Sawant. The Opposite parties no.1 and 2 filed written notes of the arguments. We have heard leaned advocate for the Complainant as well as learned advocate for the Opposite party no.1-Insurance Company.
9 We have gone through the complaint, written version of defence, affidavits, documents and written notes of arguments. We take the points that arise for our consideration and record our findings there-against as below :-
Nos. | Points | Findings |
1 | Whether the Complainant has proved that the Opposite parties are guilty of deficiency in service vis-à-vis Insurance Policy obtained by the Complainant’s husband from the Opposite party no.1 –Insurance Company ? | No |
2 | Where the Complainant is entitled to direction to the Opposite party no.1 as well as compensation ? | No |
3 | What order ? | Complaint stands dismissed. |
REASONS FOR FINDINGS :-
10 There is no dispute about the fact that the Complainant’s deceased husband had secured Home Loan from the Opposite party no.3-HDFC Limited. Deceased had secured Insurance Policy from the Opposite party no.1 under HDFC Home Loan Protection Plan.
11 The Opposite party no.1 in its written version of defence in paragraph no.2 has given details of the said policy. The date of consignment of the policy was 30.12.2006 and sum assured was Rs.10,00,000/-. The deceased had assigned the policy in favour of the Opposite party no.3 –HDFC Limited. Copy of the confirmation letter given by the Opposite party no.1 -Insurance Company to the Opposite party no.3 is produced by the Opposite party no.1 along with written version of defence. According to the Complainant, under policy benefits, on death of the deceased, the insurance company would pay outstanding amount to HDFC Limited. There is no dispute about the fact that the deceased died on 19.07.2007 at Mumbai.
12 On death of the deceased, the Complainant –wife of the deceased, gave information to the Opposite party no.3-HDFC Limited and requested to contact Insurance Company for the policy benefits. The Opposite party no.1 in turn repudiated the claim vide its letter, dated, 19.12.2007 copy of which is produced by the Complainant at exhibit-F along with the complaint. In repudiation letter, the Opposite party no.1-Insurance Company referred to the application submitted by the deceased and information given therein. Ground for repudiation as mentioned in the repudiation letter, dated, 19.12.2007 was as follows,
“However, on thorough investigation it is established that Mr. Dinesh Hukamchand Gupta was suffering from Hypothyroidism with hypertension and Minimal Change Nephrotic Syndrome prior to applying for the abovementioned Policy”.
13 In the written version of defence, the Opposite party no.1-Insurance Company has submitted that the duration of coverage under policy was almost five months and 19 days. The cause of death mentioned in the Doctors’ Certificate issued by Bombay Hospital was Intra-cerebral Hemorrhage”. Considering short duration of the policy the Opposite parties initiated investigation wherein it was revealed that the deceased was suffering from hyperthyroidism with hypertension and minimal change Nephrotic Syndrome prior to issuance of the Policy.
14 Along with the written version of defence, the Opposite party no.1 has produced case papers and treatment sheet of the treatment given to the deceased at Bombay Hospital, Mumbai. The deceased was admitted at Bombay Hospital on 10.04.2007 and he was treated there. Entries in the case paper reveal that from 10.04.2007, the deceased was treated by Doctors of Nephrology Unit at Bombay Hospital. He was constantly seen and treated by Nephrology Registrar. On 14.04.2007, the deceased had complaint of restlessness, pain in back and legs and was shifted to ICU. Entry, dated, 14.04.2007 in the case paper exhibit-B colly, while admitting Complainant’s husband in the ICU is important its reads as follows,
“47 yrs old male k/c/o (Known Case of ) Hypothyroid HT (Hypertension) /MCNS (Minimal Change Nephrotic Syndrome) in March, 2006. Biopsy in November, 2006.
Received Steroid and Immunosuppression.”
(Bracketed Portion added for explanation of abbreviation)
15 Entry, dated, 15.04.2007 recorded by ICU Registrar in the case paper is as follows,
“47 yrs male k/c/o (known case of ) :- Nephrotic Syndrome -------------- to MCGN on steroids and myprtil
K/C/O :- HBs Ag+ HB positive in Nov., 2006 -----------
K/C/O :-
Nocardia Infection on Augmentation + Levottis was admitted with history of
Oedema
Oliguria
Creatinine 2”
16 The Complainant has not disputed fact that her husband (deceased) was admitted at Bombay Hospital on 10.04.2007 and was given treatment. The Complainant has filed affidavit on 12.01.2010 and therein she deposed to Civil Suit filed by the Complainant in the court of Civil Judge Division, Nasik against present Opposite party no.3-HDFC Limited. In that suit the Complainant has filed application for temporary injunction. Copy of the application filed by her for temporary injunction application is annexed to affidavit, dated, 12.01.2010. Paragraph no.5 of the application is material in the context of medical treatment given to husband of the Complainant. She made following statements in paragraph no.5 of T. I. Application,
‘वादी क्र.1 यांचे पतींना मार्च, 2007 मध्ये पायाला सुज जाणवू लागली म्हणुन वादी क्र.1 यांनी नाशिक येथे वैद्यकिय उपचार सुरु केले. वादी क्र.1 हिस असे वाटले की, त्यांचे पतीला हृदयाच्या त्रासामुळे पायास सुज येत असावी म्हणुन हृदयाची डॉक्टरांकडून तपासण्या केल्यानंतर हृदयात काहीही बिघाड नसल्याचे लक्षात आले. संबंधीत डॉक्टरांनी किडनीचे विकाराची तपासणी करावी असा सल्ला दिल्याने वादी नं.1 यांनी त्यांचे पतीला मुंबई येथील बॉम्बे हॉस्पिटल मध्ये तपासण्यासाठी नेले.त्यावेळी तपासणी करण्यासाठी सदर हॉस्पिटलच्या डॉक्टरांनी तीन दिवस रुग्णालयात दाखल होण्याचा सल्ला दिला. त्याठिकाणी सर्व तपासण्या झाल्यानंतर तेथील डॉक्टरांनी सांगितले की, युरिनमधुन प्रोटीन लॉस होत असल्याने सुज येत असावी असे निदान केले. त्यानंतर संबंधित डॉक्टरांनी सांगितले की, पुढील जी औषधे द्यावी लागतील ती औषधे डॉक्टरांचे निगराणीत घ्यावी लागत असल्याने व वादी नं.1 हे नाशिक येथे असल्याने त्यांना वारंवार येणे जाणे शक्य होणार नसल्याने हॉस्पिटललाच दाखल होणेबाबत सल्ला संबंधित डॉक्टरांनी दिला व सदरचा उपचार हा सुमारे तीन महिने तरी चालेले असे सांगितले. म्हणुन वादी नं.1 यांनी त्यांचे पतीस सदर हॉस्पिटलमध्ये दाखल केले. सदरचा उपचार सुरु केल्यानंतर वादी नं.1 यांचे पतीची तब्येत सुधारु लागली. त्यामुळे त्यांना दिलासा मिळाला. सदर उपचारासाठी दि.10.04.2007 रोजी त्यांना हॉस्पिटलमध्ये दाखल करण्यात आले होते. सदरचा उपचार हा स्टिरॉईड व अन्य औषधांव्दारे दिला जात होता. दोन महिने व्यवस्थित फरक जाणवू लागला. मात्र त्यांनतर सदर औषधांचे साईड इफेक्टमुळे पायांमधील ताकद कमी होऊ लागली. याबाबत संबंधीत डॉक्टरांनी सांगितले की, सदर उपचारांमुळे काही दिवस या स्वरुपाचा परिणाम जाणवेल मात्र काही दिवसांनंतर औषधांची मात्रा कमी केल्यावर पुर्ववत स्थिती निर्माण होईल त्यामुळे काळजी करण्याचे कारण नसल्याचे संबंधीत डॉक्टरांनी सांगितले. त्यामुळे सदरचा उपचार चालुच होता. मात्र दि.09.07.2007 रोजी वादी नं.1 चे पतीचे ब्रेन हॅमरेज झाल्यामुळे ते कोमात गेले व दि.19.07.2007 रोजी त्यांचे निधन झाले.
17 Copy of death certificate, dated, 19.07.2007 reveals that the deceased died at Bombay Hospital on 19.07.2007.
18 Entries in the case papers and cause of death show that deceased had Nephrotic Syndrome and hypertension. Entries in the case paper reproduced above show that in March-2006, the deceased had such complaint of hypothyroidism with hypertension and biopsy was being done in March, 2006. He was taking treatment since November, 2006 and before that in March, 2006, he had such complaints. The entries in the case paper show that Nephrotic Syndrome had reached advanced stage. It could not develop suddenly. In the present case, the Complainant had filled in application / declaration Form, dated, 16.12.2007 and relying upon that declaration policy was issued on 30.12.2006. Copy of declaration signed by the deceased is produced by the Opposite party at exhibit-A with the written version of defence. Therein the deceased declared that he was in good health free from decease or disability. However, entries in the case paper recorded in ICU of Bombay Hospital shows that the deceased has such illness in February, 2006 and was on steroids since November, 2006. Still then, in the declaration signed in the December, 2007, the deceased declared that he was in good health and free from disease. Nature of the treatment taken by the deceased at Bombay Hospital show that the Nephrotic Syndrome had not suddenly appeared but it was at advance stage. Entries in the case paper shows that even before November, 2006 i.e. the deceased had such problem. The expression ‘Nocardia’ Infection which is used in the entry in the case paper, dated, 15.04.2007 shows that the deceased had such problem. The expression ‘Augmentation’ used in entry in the case paper, dated, 15.04.2007 shows that the deceased had undergone procedure to create and increase in size or volume to facilitated passing or urine. The deceased had history or ‘Oedema’ and his ‘Creatinine’ level had become double while undergoing treatment at Bombay Hospital. This could not appear suddenly. There is mention of ‘Oliguria’ in entry, dated, 15.04.2007 and one of the cause of such syndrome is ‘Renal Failure’.
19 The Complainant has not filed affidavit of any of the Medical Officer attached to Nephrology Department of Bombay Hospital to establish that the Nephrotic Syndrome had suddenly arisen and it was not in existence in November / December, 2006. At least, she could have procured certificate from the concerned Medical Officer who had treated the deceased to the effect that this ailment was not in existence in Nov./Dec. 2006. Thus, entries in the case papers of Bombay Hospital have remained unrebutted.
20 All these facts show that there was suppressionof material fact on the part of the deceased. According to the provisions contained in section-45 of Insurance Act, 1938, suppression of material fact results into vitiating contract of insurance.
21 Having gone through the copies of case papers of Bombay Hospital recording treatment given to the deceased who are satisfied that the deceased had made false declaration, regard as of his death and there was suppression of material fact.
We are thus satisfied that the Opposite party no.1-Insurance Company was justified in repudiating the claim of the Complainant. Thus, the Complainant has failed to establish deficiency in service on the part of the Opposite party. With this, we proceed to pass the following order.
::::: ORDER :::::
(1) Complaint is dismissed with no order as to costs.
(2) Certified Copy of this order to be furnished to both the parties, free of costs.
