Punjab

Ludhiana

CC/14/789

sarabjit Kaur - Complainant(s)

Versus

HDFC Ergo Gen.Ins.Co.Ltd - Opp.Party(s)

Harpreet Singh

29 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                 C.C.No: 789 of 18.11.2014

                                                                      Date of Decision:29.06.2015

Sarabjit Kaur wife of Late Sh.Balkar Singh resident of H.No.295, Bedi Nagar, District Moga.

                                                                                          … Complainant

                                      Versus

1.HDFC Ergo General Insurance Company Limited, 5^th Floor, Surya Tower, Mall Road, Ludhiana through its Branch Office.

2.HDFC Ergo General Insurance Company Limited, 6^th Floor, Leela Business Park, Andheri Kurla Road, Mumbai through its Director.

 

                                                                             … Opposite parties

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

 

Present:       Sh.Harpreet Singh, Advocate for complainant.

                   Sh.Vyom Bansal, Advocate for OPs.

                                           ORDER

 

(R.L.AHUJA, PRESIDENT)

 

1.                Present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Smt.Sarabjit Kaur(herein-after in short to be referred as ‘Complainant’) against HDFC Ergo General Insurance Company Limited and others (herein-after in short to be referred as ‘OPs’)- directing them to pay Rs.5 lakh under the head of “Accidental Death” and to clear the outstanding balance loan amount of the financer amounting to Rs.7 lakh approximately under the head “Credit Shield Insurance” and to pay Rs.50,000/- on account of medical expenses under the head “Critical Illness” besides Rs.2 lakh on account of mental pain, agony and harassment and Rs.1 lakh on account of legal expenses to the complainant.

2.                Brief facts of the complaint are that complainant’s husband Sh.Balkar Singh had purchased a Toyata Etios vehicle bearing registration No.PB-29Q-0413 and had also availed a loan from HDFC Bank for the said vehicle on 23.1.2013. At the time of sanctioning of the loan, the Ops had also given a policy No.2950200416932800000 known as Sarv Suraksha Policy (Sarv Suraksha Plus) to Sh.Balkar Singh which covered loss of job, accidental death, permanent total disability/partial disability, accidental hospitalization, critical illness, credit shield insurance, garage cash and house holders coverage. The period of policy was w.e.f.24.1.2013 to 23.1.2018. The nominee in the said policy was the complainant. On 30.4.2013, Sh.Balkar Singh was diagnosed with a Mass in the left kidney by way of a C.T.Scan and M.R.I. conducted on the said date by Patel Hospital, Civil Lines, Jalandhar. Thereafter, on 10.5.2013, he had undergone an operation for removal of the said Mass but unfortunately, died on the same day due to cardio respiratory arrest in Hans Raj Hospital. The complainant had approached the Ops for getting the claim under the policy but she did not get any positive response from the Ops. Therefore, she served a legal notice dated 6.1.2014 upon the Ops but the Ops sent a reply dated 21.1.2014 denying the claim to her. In the reply dated 21.1.2014, the Ops had registered the claim under three heads i.e. Accidental Death, Credit shield and Critical Illness. The claims under the three heads given below have been wrongly denied by the Ops i.e.

i)Accidental Death:- By way of the said reply dated 21.1.2014, the Ops had stated that the term “accident” has been defined in the policy as a sudden, unintended and fortuitous external and visible event and Sh.Balkar Singh had died of left kidney tumor which is not an accidental death.

It is submitted that as defined by the Ops in the policy, an accident is a sudden, unintended external and visible event. It is not defined only as a road accident. In the present case, Sh. Balkar Singh was being operated in the operation theatre of Hans Raj Hospital for removal of left renal mass but he suffered sudden cardio respiratory arrest in the operation theatre and died. The act of operation is a sudden, unintended external and visible event which caused the death of Sh.Balkar Singh and the death was not natural but unnatural and an accident. Thus, the death of Sh.Balkar Singh was an accidental death and the Ops are liable to pay Rs.5 lakh under this head.

ii)Credit Shield Insurance:- In their reply dated 21.1.2014, the Ops had stated that credit shield insurance i.e. the payment of balance outstanding loan amount in the books of the financer of the vehicle shall be given only in the event of accidental death.

The death of Sh.Balkar Singh was an accidental death, therefore, the Ops are liable to pay the outstanding loan amount of Rs.7 lakh approximately to the financer.

iii)Critical Illness:-In the reply dated 21.1.2014, the Ops had stated that any critical illness diagnosed within the first 90 days of the date of commencement of the policy is excluded. They have further stated that as the policy incepted on 24.1.2013 and Balkar Singh was diagnosed with the disease in the month of January, 2013 i.e. within 90 days, therefore, no claim is payable under this head. It is submitted that Sh.Balkar Singh was firstly diagnosed with left renal mass on 30.4.2013 by way of a MRI and CT Scan dated 30.4.2013. The treating doctor had mistakenly mentioned January, 2013 in his certificate and he had issued another certificate dated 11.8.2014 stating that the actual date of diagnosis was 30.4.2013. Thus, the illness was diagnosed after a passage of 90 days from the inception of policy i.e. 24.1.2013. A period of 96 days had passed when he was diagnosed with the illness. Hence, the Ops are liable to pay the medical expenses of Rs.50,000/- incurred on the treatment of Sh.Balkar Singh. However, Ops have wrongly repudiated the genuine claim of the complainant. Such act and conduct of Ops is claimed to be deficiency in service on their part by the complainant. Hence, this complaint.

 

 

3.                Upon notice of the complaint, Ops were duly served and appeared through their counsel and filed their written reply, wherein, it has been submitted in the preliminary objections that the deceased Late Balkar Singh was insured for the period of 24.1.2013 to 23.1.2018 vide policy No.2950200416932800000 under the Sarv Suraksha Policy by the answering Ops for loss of Job (3 EMI), Accidental Death, Permanent Total Disability/Permanent Partial Disability, Accidental Hospitalization, Critical illness, Credit Shield Insurance, Garage Cash and householders Coverage for the sum insured as detailed in the policy schedule. The benefits under the policy are governed by the terms and conditions of the policy and the liability of the answering Ops is limited to the insured perils occurring within the policy period subject to conditions and exceptions as mentioned in the terms and conditions of the policy. Upon intimation on 22.5.2013 regarding the death of the insured, three claims were registered under the heads, ‘Accidental Death’, ‘Credit Shield”, “Critical Illness” vide claim numbers C295013000838, C295013000839 and C295013001452 respectively. After scrutinizing the documents submitted and after thorough application of mind by the officials of answering Ops, the claim of the complainant was repudiated vide letters dated 27.6.2013 and 8.9.2013 under all three heads for the reasons as under:-

i)Personal Accident

The term Accident has been defined as follows:-

“Accident” or “Accidental” means a sudden, unforeseen and involuntary event caused by external, visible and violent means. “Bodily Injury” means physical bodily harm or injury, but does not include any mental sickness, disease or illness.

The relevant policy condition is extracted below for ready reference:

Section 2: Personal Accident

2)Coverage parts

2.1)Coverage Part A:Death

2.1.1)The company will pay the sum insured in the event of Accident bodily Injury causing insured’s death within 12 months of the Accidental Bodily Injury being sustained, where after this policy shall expire.

ii)Credit Shield:

Section 5:

Credit Shield:- In the event of accidental death or permanent total disability of the insured person during the policy period, the company will make payment under this policy as detailed below:-

The company will pay the balance outstanding loan amount in the manner agreed in the name of insured person in the books of the Financer/Bank/Mortgage Company, subject to the maximum sum insured specified in the schedule. Claim will be directly paid to the Financer/Bank/Mortgage Company, to the extent of outstanding loan amount.

Since as per the documents, it was revealed that the insured died due to Left Kidney Tumor, which by no way of meaning is covered under the accidental death and the policy provides the Credit Shield Insurance only in case of Accidental Death, thus, the claim under these heads was found not payable.

iii)Critical Illness

Specific Exclusions applicable to Section I

2)Any Critical illness diagnosed within the first 90 days of the date of commencement of the policy is excluded. This exclusion shall not apply to an insured for whom, coverage has been renewed by the Named Insured, without a break, for subsequent years.

In the present case, the date of inception of policy was 24.1.2013 and as per the documents collected, it was observed that the insured had complaints of Renal Mass since January 2013 i.e.before inception of the policy and hence, it also falls under the 90 days exclusion clause of policy. As per Section 3 of the policy, any critical illness diagnosed within first 90 days of the commencement of the policy is excluded and as such, no claim is payable. The present complaint in any form is not maintainable before this Hon’ble Forum as no cause of action arose to the complainant within the territorial jurisdiction of this Hon’ble Forum. The policy in question was issued by the answering Ops at Mumbai and the payment for the said policy was also not received within the territorial of this District Forum. The complainant has failed to bring on record any document to evidence that either the policy or premium was received at Ludhiana, thus the present complaint deserves to be dismissed. The present complaint is liable to be rejected outrightly as the same is not supported by an affidavit of the complainant and lacks of proper verification of the complaint. Reply on facts, it is submitted that as per the documents filed by the complainant herself i.e. the certificate dated 10.5.2013 of Dr.Rajesh Gupta, it is mentioned that Balkar Singh was suffering from the disease since January, 2013 and as such, the same falls outside the scope of the coverage under the policy in question. The cause of death of Balkar Singh in the present case does not fall within the ambit of Accident Bodily Injury as defined in the policy and thus, no claim is payable. The death due to sudden cardio respiratory arrest in the operation theatre does not fall under the definition of Accident Bodily Injury and thus, the claim of Rs.5 lakh on that score is baseless and illusionary. Further, the financer has not been made a party to the complaint. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complaint being wrong and incorrect, answering OPs prayed for the dismissal of the complaint.

4.                Both the parties adduced their evidence in the shape of affidavits and documents.

5.                We have heard the learned counsel for the parties.

6.                Learned counsel for the complainant had filed the written arguments on 17.6.2015, in which, it has been submitted that Sh.Balkar Singh(insured) had died during an operation, therefore, it is a sudden external and visible event and thus, falls in the definition of “accident” as defined under the policy (clause 4). As it is a accident, therefore, the Ops are liable to pay Rs.5 lakh under the head “Accidental Death”. Accident does not only mean a road accident. Similarly, on the basis of the same abovesaid arguments, the Ops are liable to pay Rs.3.20 lakh to the complainant under the “Credit Shield Insurance” head as the complainant has paid the said amount to the fiancé company who had insured the car in question. Under the head of “Critical illness”, the Ops are liable to pay the expenses incurred by the complainant’s husband late Sh.Balkar Singh on his illness. The Ops states that the illness had occurred within 90 days of start of policy, hence, claim under the head is not payable. Ex.R10 (certificate of treating doctor) says that the patient was a known case of left Renal Mass since 30.4.2013 and not January 2013 which was mistakenly written. Hence, the illness had occurred after 90 days as the policy had started on 24.1.2013. Even MRI scan (EX.R7) is of 30.4.2013, from where the illness was diagnosed.

7.                On the other hand, learned counsel for the Ops has filed the written arguments, in which, it has been submitted that the claim falls outside the scope of coverage under the policy as upon intimation on 22.5.2013 regarding the death of the insured, three claims were registered under the heads, ‘Accidental Death’, ‘Credit Shield’, and ‘Critical Illness’. The claim under all the three categories was rejected. The case of death of Balkar Singh in the present case does not fall within the ambit of Accident Bodily Injury as defined in the policy and thus, no claim is payable. The death due to sudden cardio respiratory arrest in the operation theatre does not fall under the definition of Accident Bodily Injury and thus, the claim of Rs.5 lakh on that score is baseless and illusionary. In the present case, the date of inception of policy was 24.6.2013 and as per the documents collected, it was observed that the insured had complaints of Renal Mass since January 2013 i.e. within 90 days of the inception of the policy. As per Section 3 of the policy and critical illness diagnosed within first 90 days of commencement of the policy is excluded and as such, no claim is payable. As per the documents filed by the complainant herself i.e. the certificate dated 10.5.2013 of Dr.Rajesh Gupta, it is mentioned that Balkar Singh was suffering from the disease since January, 2013 and as such, the same falls outside the scope of coverage under the policy in question. Further, the documents revealed that the insured died due to Left Kidney Tumor, which by no way of meaning is covered under the accidental policy and the policy provides the credit shield insurance only in case, of accidental death, thus, the claim under these heads was found not payable. Without admitting its liability, Ops submits that the claim of Rs.7 lakh towards outstanding of the Financier is baseless, imaginary and without any proof. Further, the Financer has not been made a party to the complaint and thus, the complaint deserves a dismissal. The complainant has not produced any evidence, even no affidavit of Dr.Rajesh Gupta has been produced regarding the fact that the treating doctor had wrongly mentioned January 2013 in his certificate. The terms of the contract of insurance have to be strictly construed.

8.                We have gone through the written arguments filed by the learned counsel for the parties and have also perused the documents on record very carefully.

9.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant’s husband namely Sh.Balkar Singh was the owner of Toyota Etios vehicle bearing registration No.PB-29-Q-0413. Further, it is a proved fact on record that at the time of purchase of the aforesaid vehicle, husband of the complainant Sh.Balkar Singh had availed a loan from HDFC Bank for the aforesaid vehicle on 23.01.2013 and he had also obtained policy No.2950200416932800000 known as Sarv Suraksha Policy(Sarv Suraksha Plus) from the Ops which was valid w.e.f.24.1.2013 to 23.1.2018, by which, Ops had  covered loss of job, accidental death, permanent total disability/partial disability, accidental hospitalization, critical illness, credit shield insurance, garage cash and house holders coverage and the nominee in the said policy was the present complainant.

10.              As per the allegations of the complainant that on 30.4.2013, her husband Sh.Balkar Singh was diagnosed with a Mass in the left kidney by way of a C.T.Scan and M.R.I. conducted on the said date by Patel Hospital, Civil Lines, Jalandhar and thereafter, on 10.5.2013, her husband Sh.Balkar Singh had undergone an operation for removal of the said Mass but unfortunately, he died on the same day due to cardio respiratory arrest in Hans Raj Hospital. Further, there are allegations that after the death of her husband Sh.Balkar Singh, the complainant had approached the Ops for getting the claim under the policy being the nominee of her husband. However, the same was repudiated by the Ops vide letters dated 27.06.2013 and 8.9.2013.

11.              Perusal of the evidence of the complainant reveals that the complainant has furnished her affidavit in evidence as Ex.CA, in which, she has reiterated all the contents of the complainant. Further, the complainant has placed on record documents Ex.C1 copy of registration certificate of the vehicle No.PB-29-Q-0413, Ex.C2 copy of Welcome Letter dated 24.1.2013 issued by Ops to the husband of the complainant, Ex.C3 copy of insurance policy which was issued from Mumbai Office of OPs, Ex.C4 copy of death certificate of Sh.Balkar Singh, who died on 10.5.2013, Ex.C5 copy of legal notice dated 6.1.2014 sent by the complainant to Ops, Ex.C6 copy of reply dated 21.1.2014 sent by the Ops to legal notice of the complainant, Ex.C7 copy of CT Scan dated 30.4.2013 conducted by Patel Hospital, Jalandhar, Ex.C8 copy of MRI of Abdomen on 1.5.2013 by Patel Hospital, Jalandhar, Ex.C9 and Ex.C10 copies of certificates issued by Dr.Rajesh Gupta of Hans Raj Hospital, Moga, Ex.C11 to Ex.C21 copies of cash memos issued by Balsatwant Medical Store, Ex.C22 copy of letter dated 28.3.2015 qua settlement offer of HDFC Bank Loan and Ex.C23 copy of receipt of HDFC Bank of Moga.

12.              On the other hand, evidence of the Ops reveals that Ops have tendered into evidence affidavit Ex.RA of Dr.Nilutpal Bora, who was working with Ops, in which, she has proved the fact that the insured died due to left kidney tumor and she had observed that the insured had complaints of Renal Mass since January 2013 i.e. within 90 days of the inception of the policy. Further, Ops has tendered into evidence affidavit Ex.RB of Sh.Pankaj Kumar, its Manager Legal, in which, he has reiterated all the contents of the written reply filed by the Ops. Further, Ops have proved on record documents Ex.R1 copy of Policy schedule alongwith working and terms and conditions of the policy, Ex.R2 and Ex.R3 copies of repudiation letters dated 27.6.2013 and 8.9.2013 respectively, Ex.R4 copies of medical documents of the insured and Ex.R5 copy of reply to the legal notice of the complainant.

13.              Perusal of the evidence of the complainant reveals that the complainant has placed on record copies of certificates of Dr.Rajesh Gupta of Hans Raj Hospital as Ex.C9 and Ex.C10 respectively. Perusal of copy of Certificate Ex.C9 reveals that he had certified that Balkar Singh s/o Kulwant Singh r/o Moga was a known case of left Renal Mass since January 2013 and was operated upon for Radical Nephrectomy Dr.Nitin Aggarwal on 10.05.2013. Patient expired at around 4:45 PM due to Cardio Respiratory Arrest. However, perusal of copy of certificate Ex.C10 reveals that Dr.Rajesh Gupta had certified that Sh.Balkar Singh was suffering from the aforesaid disease from 30.4.2013 instead of January, 2013, which are self contradictory and same cannot be relied upon.

14.              So, it appears from the evidence of the parties that deceased Sh.Balkar Singh was already suffering from the disease since 24.1.2013 when he had approached for his test in the laboratory and thereafter, he continued to get the tests conducted from the different labs in order to get the disease diagnosed. Though, his MRI and C.T.Scan was conducted on 30.04.2013 Ex.C7 and on 1.5.2013 Ex.C8. So, it appears that deceased Sh.Balkar Singh was already suffering from the aforesaid disease since the date of inception of the policy which falls under the exclusion clause of the policy. So, we are of the opinion that Ops had rightly repudiated the claim of the complainant under the policy and there does not appear to be any deficiency in service on the part of the Ops.

15.              Further, the complainant has got no jurisdiction to file the present complaint at Ludhiana as neither the policy in question was purchased from Ludhiana nor any payment receipts has been placed on record showing that the payment of premium has been made at Ludhiana. Though, deceased Sh.Balkar Singh had taken his treatment from Moga and Jalandhar. So, it appears that no cause of action has been accrued, wholly or in part, to the complainant at Ludhiana and this District Forum has got no jurisdiction to decide the present complaint.

16.              In view of the above discussion, we are of the opinion that the complaint of the complaint is devoid of any merit and the same is hereby dismissed. However, the complainant is at liberty to approach the competent Forum, if she is legally entitled to do so in accordance with law. Copy of the order be made available to the parties free of costs. File be completed and consigned to record room.

 

                             (Sat Paul Garg)              (R.L.Ahuja)

                               Member                       President    

Announced in Open Forum

Dated:29.06.2015

Gurpreet Sharma.