BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.60 of 2016
Date of Institution : 16.2.2016
Date of Decision : 21.7.2017.
Naresh Kumar aged about 25 years son of late Shri Bhup Singh, resident of village Tarkanwali, Tehsil and District Sirsa.
….Complainant.
Versus
1. HDFC Bank Ltd. Sangwan building, Near Canara Bank, Dr. Sangwan Chowk Sirsa, District Sirsa through its Manager.
2. HDFC ERGO General Insurance Company Ltd. Corporate office at 6th Floor, Leela Business Park, Andheri Kurla Road Andheri (East) Mumbai- 400059 through its Principal Manager.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT. RAJNI GOYAT ……….…… PRESIDING MEMBER.
SH. MOHINDER PAUL RATHEE…………MEMBER
Present: Sh. M.S. Gill, Advocate for the complainant.
Sh. S.L. Sachdeva, Advocate for opposite party No.1.
Sh. R.K. Mehta, Advocate for opposite party no.2.
ORDER
The complainant being real son and nominee of his deceased father Bhup Singh has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.
2. In brief, the case of the complainant is that father of complainant Bhup Singh was an employee in Dakshin Haryana Bijli Vitran Nigam and was serving as an Assistant Lineman. On 7.10.2014, father of complainant purchased a Sarv Suraksha Policy (Sarvk Suraksha PRO) No.2950200871464600000 from op no.1 as agent of op no.2. The father of complainant also paid a one time installment of Rs.3125/- to op no.1. This one time installment amount was for five coverage benefits of this policy i.e. credit shield insurance, permanent total disability, permanent partial disability, accidental hospitalization, critical illness and accidental death. On 14.1.2015, father of complainant fell ill due to disease of Syncope and others and he was admitted in Jindal Institute of Medical Science Model town, Hisar and he remained under treatment continue till his death i.e. 22.7.2015. It is further averred that after the death of his father, complainant contacted in the office of op no.1 and the concerned officials of op no.1 suggested the complainant for sending the claim form after attaching the post mortem report of Bhup Singh to the office of op no.2. The complainant submitted the same in the office of op no.2 in the month of August, 2015 but in response op no.2 repudiated the claim of complainant on 31.8.2015. After that complainant met with officials of op no.1 and they again suggested for taking the benefit of the policy after filling up specific form and to send it to the office of op no.2. The complainant on 19.11.2015 sent the duly filled in claim form to op no.2, but he was stunned when he received a letter of repudiation of claim on 24.11.2015 from the side of op no,2. That the insured person Sh. Bhup Singh expired on 22.7.2015 and complainant being nominee sent a registered letter on 22.9.2015 to op no.1 but till today no reply was given. That the death of complainant’s father was due to Myocardial Infarction as per post mortem report dated 22.7.2015 which was covered under column No.5 of aforesaid policy. The complainant’s father choose HDFC ERGO SARV SURAKSHA PRO, a comprehensive insurance plan on the assurance of coverage of his personal loan from HDFC Bank and his policy No.2950 also confirmed the maximum tenure as 48 months i.e. 7.10.2014 to 6.10.2018 or the loan tenure and providing of number of coverage and benefits including critical illness. The claim of the complainant’s father falls under the policy’s coverage critical illness as per specific definitions applicable to Section 1 sub para 1. In this way, it is liability of op no.2 to pay Rs.1,00,000/- being insured amount and also to pay the balance outstanding loan amount. That the opposite parties have failed to provide proper service to the complainant and to make the payment as agreed in the policy to the complainant in time, due to which he has suffered heavy loss, unnecessary harassment and they have caused a great deficiency of services. Hence, this complaint.
3. On notice, opposite parties appeared. OP no.1 filed written statement taking certain preliminary objections that complainant has failed to serve prior notice to the op before filing the present complaint and regarding estoppal; maintainability; cause of action; suppression of material facts; jurisdiction; locus standi and mis joinder of necessary party. It has been submitted that the complainant has not disclosed the particulars about the legal heirs of the deceased and the complainant has also failed to mention that he is the only legal heir of the deceased. In this manner, the other legal heirs who are necessary party have not been impleaded as party in the present complaint and that complainant has failed to avail the efficacious remedy prior to filing of complaint as there is an Arbitration clause in the loan agreement. On merits, it has been submitted that father of complainant approached the op for grant of a personal loan amounting to Rs.2,50,000/-. The op no.1 granted the loan facility to the deceased father of the complainant for an amount of Rs.2,50,000/- vide loan account No.29899057. The borrower was under obligation to repay the financed amount alongwith interest in 48 monthly installments of Rs.7376/- each per month which were to be commenced w.e.f. 4.11.2014. The fact that the father of complainant purchased a policy is not denied. However, it is necessary to mention here that the op no.1 has only facilitated the issuance of insurance policy in favour of father of complainant. The premium paid by the father of complainant was paid to the insurance company directly against which the insurance company issued a policy. The answering op is not liable to for any act of the insurance company. The claim of insurance is to be settled by the insurance company and the answering op has no role to play in the same. The complainant has inherited the estate of the deceased and being his legal heir and beneficiary of the estate of the deceased, he is legally bound and under obligation to clear the debt of his father also. As his father has obtained a loan from the Bank and the Bank has advanced him loan from the public money, hence the bank has every right to make efforts to recover the said loan. The answering op is not doing any wrong act. Remaining contents of complaint have also been denied.
4. Opposite party no.2 appeared and filed written statement taking preliminary objections that the present complaint is barred under the principles of Estoppal, Waiver and Acquiesces; that present complaint is not maintainable in the present form; that complainant has got no locus standi to file the present complaint; that no cause of action has been arisen to the complainant to file the present complaint; that the complaint is in respect to the insurance policy taken by the insured. The copy of the insurance policy alongwith its terms and conditions were duly supplied to the insured and as such all the coverage, benefits and liabilities arising out of the policy are subject to such terms and conditions; that the claim under the policy was lodged claiming benefits under Critical Illness coverage, however the same was repudiated under intimation to the complainant mentioning the reason for such repudiation; that the case of the complainant is not falling within the purview of policy coverage as for the benefit under Critical Illness, the insured has to survive for a period of 30 days after diagnosis of the critical illness. However, in the present case since the insured unfortunately expired on the same day of causing heart attack, the benefits under Critical Illness cover is not payable and that complainant has not come with clean hands and has suppressed true and material facts from this Forum, therefore, complainant is not entitled for any relief. It has been further submitted that the op company has repudiated the claim of the complainant vide repudiation letter dated 31.8.2015/ 24.11.2015 on the ground that as per post mortem report received late Sh. Bhup Singh had a sudden heart attack on 22.7.2015 with no prior related symptoms and he expired on same day. However, for critical illness to be admissible under policy, the insured person has to survive for a period of 30 days from the time he was diagnosed for illness. The said condition is also not fulfilled in the present case. Since the losses claim under critical illness is not covered as per policy wording, the answering op treated the claim as “No Claim”. It has been further submitted that complainant has prayed for refund of personal loan being taken by his father. However, the outstanding loan amount is covered under the benefit of Credit Shield under the policy and the same is applicable only in case of Accidental Death and hence the claim is not admissible under the Cover of “Credit Shield.” It is settled principle under law that the insurance is a contract and liability under this is decided considering the terms and conditions of the contract. The complainant has claimed the death of his deceased father due to heart attack which is not covered in the policy under any of the coverage as defined and described under the policy documents. On merits, the pleas taken in the preliminary objections have been reiterated, contents of the complaint have been denied and prayer for dismissal of complaint has been prayed for.
5. The complainant produced his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C29. On the other hand, ops produced affidavit Ex.RW1/A, affidavit Ex.R1 and documents Ex.R2 to Ex.R16.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. Admittedly the father of the complainant namely Bhup Singh, since deceased purchased insurance policy from opposite party no.2 through op no.1 while taking personal loan from opposite party no.1. The policy in question covered five coverage benefits i.e. critical illness, permanent partial disability, permanent total disability, accidental hospitalization and credit shield. We are of the considered opinion that the nominee of Bhup Singh, since deceased i.e. complainant Naresh Kumar has rightly claimed the amount under clause of critical illness which the insurance company has repudiated. The sub clause (1) of the Critical Illness provided in the terms and conditions of the policy is relevant and same is reproduced as under:-
CRITICAL ILLNESS COVERAGE
- First Heart Attack-of Specified Severity:
The first occurrence of myocardial infarction which means the death of a portion of the heart muscle as a result of inadequate blood supply to the relevant area. The Diagnosis for this will be evidenced by all of the following criteria.
- A history of typical clinical symptoms consistent with the diagnosis of Acute Myocardial Infarction (for e.g. typical chest pain)
- New characteristic electrocardiogram changes
- Elevation of infarction specific enzymens, Troponins or other biochemical markers
The following are excluded :
- Non-ST-segment elevation myocardial infarction (NSTEMI) with only elevation of Troponion I or T
- Other acute Coronary Syndromes
- Any type of angina pectoris
8. Further, the record available on file revealed that father of the complainant fell ill for the first time and admitted to Jindal Institute of Medical Sciences, Hisar on 14.1.2015 and was discharged on 16.1.2015 and was diagnosed as suffering from the disease of Syncope and others as is evident from discharge card Ex.C2. He was taking treatment regularly since then vide prescription slips Ex.C3 dated 20.1.2015, Ex.C4 dated 5.2.2015, Ex.C5 dated 5.3.2015, Ex.C6 dated 3.4.2015, Ex.C7 dated 2.5.2015, Ex.C8 dated 1.6.2015 and Ex.C9 dated 4.7.2015 for the disease of syncope and others and died on 22.7.2015. In the post mortem report Ex.C27, the doctor who conducted post mortem examination has opined the cause of death as ‘Myocardial Infarction’ and its complication. A look to the meanings of medical terminology of following words is important in this case:-
Syncope:- (Gr.synkope, fainting). A transient loss of consciousness due to inadequate blood flow to the brain.
ETIOL: Syncope or fainting may be due to deficient blood flow resulting from peripheral circulatory failure, cerebral vascular accident (stroke), cardiac arrhythmia or transient cardiac standstill in Stokes- Adams syndrome, 1.v., or altered blood chemistry as in hyperventilation or hypoglycemia. Predis-posing factors include fatigue, prolonged standing, nausea, pain, emotional disturbances, anemia, dehydration, poor ventilation and many others.
Myocardial Infarction: Development of an infarct in the myocardium, usually the result of myocardial ischemia following occlusion of a coronary artery.
SYM: Pain similar to that of angina pectoris, shock, cardiac failure with arrhythmia and frequently sudden death.
Cardiac: Syncope of cardiac origin as in Stokes- Adams syndrome, aortic stenosis, tachycardia, bradycardia, or myocardial infarction.
A close look to the meanings of above medical words makes it crystal clear that Bhup Singh was suffering from a disease which causes inadequate flow of blood to the brain or any other part of the body/ relevant area. The relevant portion of clause Critical Illness provided in the literature relating to the Sarv Suraksha Policy available on the record reads as under:-
“The first occurrence of myocardial infarction which means the death of a portion of the heart muscle as a result of inadequate supply to the relevant area.
9. From the above, it is quite clear that Bhup Singh, since deceased suffered from the disease of syncope on 14.1.2015 and died on 22.7.2015 due to the inadequate blood flow in the relevant part. HDFC ERGO General Insurance Company i.e. op no.2 handled the claim case of the complainant in a casual and carelessness manner. An example of its carelessness is evident from written statement filed on behalf of op no.2 which is signed by Sh. Pankaj Kumar, Manager-Legal Claims and Authorized Signatory of HDFC ERGO on 1.9.2016 and the column No.14 of the written statement states that “It is further submitted that the complainant has claimed the death of her deceased husband due to heart attack”. Again he signed an affidavit on 30.3.2017 and same has been placed on file as Ex.R1 and the column No.14 of which reads as follows “It is further submitted that the complainant has claimed the death of her deceased husband due to heart attack”. Whereas there is no lady in this case and the nominee Mr. Naresh son of Bhup Singh deceased is claimant. So, in our considered opinion the complainant is entitled for the claim amount of Rs.1,00,000/- as per Sarv Suraksha policy under Critical Illness. The plea of the opposite party no.2 that the case of the complainant is not falling within the purview of policy coverage as for the benefit under critical illness, the insured has to survive for a period of 30 days after diagnosis of the critical illness, however, in the present case, since the insured unfortunately expired on the same day of causing heart attack, the benefits under critical illness cover is not payable is also not admissible because as mentioned above Bhup Singh was diagnosed with disease of Syncope for the first time on 14.1.2015 and he died on 22.7.2015. So, it is proved on record that op no.2 is not only deficient in service but op no.1 which got insured the deceased from op no.2 is also equally responsible for the deficiency of service because it was the duty of the op no.1 to pursue the claim case of the complainant and to get settle the claim of the complainant from op no.2 which is subsidiary of HDFC Bank but op no.1 failed in this regard. However, the complainant is not entitled to refund of the payment of loan amount, if any paid by Bhup Singh because payment of outstanding loan amount by insurance company is in the event of accidental death or permanent total disability of the insured person.
10. Thus, as a sequel to our above discussion, we partly allow the present complaint and direct both the opposite parties jointly and severally to pay claim amount of Rs.1,00,000/- to the complainant. We also direct the ops to pay a sum of Rs.20,000/- as compensation for harassment and further a sum of Rs.5000/- as litigation expenses to the complainant. This order should by complied by the ops jointly and severally within a period of one month from the date of receipt of copy of this order, failing which the ops will be liable to pay penalty of Rs.500/- per day to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance
Announced in open Forum. Presiding Member,
Dated: 21.07.2017. District Consumer Disputes
Redressal Forum, Sirsa.
Member.
