Punjab

Tarn Taran

CC/87/2019

Manjit Kaur - Complainant(s)

Versus

HDFC Ergo Gen.Insu. - Opp.Party(s)

S.S. Anand

29 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,ROOM NO. 208
DISTRICT ADMINISTRATIVE COMPLEX TARN TARAN
 
Complaint Case No. CC/87/2019
( Date of Filing : 18 Oct 2019 )
 
1. Manjit Kaur
r/o VPO Chautala,Tehsil and District Tarn Taran
Tarn Taran
PUNJAB
2. Kanwardeep Singh
r/o VPO Chautala,Tehsil and District Tarn Taran
Tarn Taran
PUNJAB
3. Anwardeep Singh
r/o VPO Chautala,Tehsil and District Tarn Taran
Tarn Taran
PUNJAB
...........Complainant(s)
Versus
1. HDFC Ergo Gen.Insu.
HDFC Ergo General Insurance Company Limited, HDFC House, 1st floor, 165-166, Backbay Reclamation,H.T.Parkh Marg, Churchgate, Mumbai-4000020 through its MD
2. HDFC Ergo Gen.Insu.
HDFC Ergo General Insurance Company Limited, Branch Office 3rd Floor Nagpal Tower-1 SCO 128 Ranjit Avenue, Amritsar through its Manager.
3. HDFC Bank
HDFC Bank Limited,Branch Tehsil and District Tarn Taran through its Manager.
............Opp.Party(s)
 
BEFORE: 
  Sh.Charanjit Singh PRESIDENT
  Mrs.Nidhi Verma MEMBER
  SH.V.P.S.Saini MEMBER
 
PRESENT:
For the complainant Sh. S.S. Anand Advocate
......for the Complainant
 
For OP Nos. 1 and 2 Sh. R.P. Singh Advocate
For OP No. 3 Exparte
......for the Opp. Party
Dated : 29 Feb 2024
Final Order / Judgement

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11, 12, 13 and 14 against the opposite parties on the allegations that Sh. Kuldeep Singh husband of complainant No.1, father of complainant Nos. 2 and 3, took an accidental life insurance policy bearing No. 2999201363863001 from the opposite party No. 1 and 2 insurance premium was obtained by the opposite party No. 1 through cheque/DD/Funds Transfer (S1-260920-AL-2509) dated 26.9.2017 through agent HDFC bank Ltd. Sh. Kuldeep Singh died on 28.11.2017 and opposite party failed to pay the insurance claim to the complainants being legal heirs and successors of Kuldeep Singh. Sh. Kuldeep Singh son of Karnail Singh was retired from Indian Army. Kuldeep Singh purchased a Maruti alto K 10 VXI from Jaycee Motors near petrol pump Amritsar Road Tarn Taran and paid Rs. 1,00,000/- in cash to Jaycee Motors, Tarn Taran and Rs.2,56,761/- by availing loan from opposite party No. 2. The opposite party No. 2 as per its policy of securing loan insured Kuldeep Singh with accidental life insurance with insurance cover of Rs. 5,00,000/- for accidental death and Rs. 1,00,000/- as loss of Job and Rs. 1,50,000/- as householders coverage and Rs 5,00,000/- for permanent total disability and partial disability and Rs 1,00,000/- for Accidental Hospitalization and Rs 1,00,000/- for critical illness and Rs 5,00,000/- for credit Shield Insurance and Rs 3500/- for Garage cash. The insurance certificate/ cover was provided by opposite party No. 2 through policy of opposite party No. 1 having policy No. 2999201363863001 for which he had paid total amount of one time premium of Rs. 6761/- which was obtained by opposite party No. 1 through opposite party No.2 through cheque/DD/Funds Transfer (S1-260920-AL-2509) dated 26.9.02017 and before the death of Kuldeep Singh, Kuldeep Singh paid his installments of his purchased car to HDFC bank branch Tarn Taran through his saving account MNo.55082285651 State Bank of Patiala branch Grain Market Tarn Taran and after the death of Kuldeep Singh, the complainants paid the installments in cash to agent of HDFC bank. The Car was also insured with Maruti Insurance Private Ltd. The opposite parties did not supply the insurance policy and terms and conditions to insurer. Nor the opposite parties orally explained the terms and conditions to the insurer Kuldeep Singh. Sh. Kuldeep Singh died due to his critical illness on 28.11.2017 and complainants submitted the claim form alongwith the original policy, death certificate of deceased Kuldeep Singh, and other required documents with the opposite parties. The opposite parties failed to pay the claim to the complainants. The opposite party No. 1 wrongly repudiated the claim of the complainants vide repudiation letter dated 15.01.2018. The complainants prayed the following reliefs.

  1. The opposite parties may be directed to pay the critical illness claim of sum of Rs. 1,00,000/- of Sh. Kuldeep Singh deceased as mentioned in the insurance certificate alongwith interest @ 12% p.a. to the complainants.
  2. The opposite parties may be directed to pay litigation expenses and counsel fee amounting to Rs. 30,000/-,
  3. The opposite parties may be directed to pay compensation for mental harassment and suffering amounting to Rs. 50,000/-

Alongwith the complaint, the complainant has placed on record insurance cover note Ex. C-1, death certificate of Kuldeep Singh Ex. C-2, repudiation letter dated 21.5.2018 Ex. C-3, Account statement of Kuldeep Singh of loan account Ex. C-4, Affidavit of complainant Manjit Kaur Ex. C-5

2        Notice of this complaint was sent to the opposite parties and opposite parties No. 1 and 2 appeared through counsel and filed written version by interalia pleadings that  the present complaint pertains to insurance claim under Sarv Suraksha Policy having policy number 2950 2019 2207 5400 000 valid from 26.9.2017 to 25.9.2022. The liability of the company, if any, is subject to terms and conditions of the policy. The copy of insurance policy along with its coverage details, terms and conditions were duly supplied to the complainant which has never been disputed till the claim of the Complainant was repudiated. After the death of the insured, the complainant lodged claim with the answering opposite parties seeking benefits under Critical Illness section of the Policy.  As per the death summary the insured was admitted in Fortis Hospital on 18.11.2017 and unfortunately expired on 28.11.2017. The said period falls within 90 days. As per the terms and conditions of the policy, the opposite parties No. 1 and 2 are not liable to pay any claim under critical illness if the critical illness is diagnosed within the first 90 days of the policy. Any critical illness which is diagnosed within the first 90 days of the policy is excluded from the purview of the policy. The relevant condition is reproduced here in below:

SPECIFIC EXCLUSIONS APPLICABLE TO SECTION 1

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 any of the following:

 

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.

The insured was admitted to the hospital within the first 90 days of the policy inception. The policy commenced on 26.9.2017 and the critical illness was diagnosed on 18.11.2017 Therefore, for this reason the claim of the complainant is not payable under the policy terms and conditions and the same was communicated to the complainant vide letter dated 15.1.2018. The policy was issued to the insured in the year 2017 and therefore the insured was the right person to raise the objection and the same was never raised till the filing of the present complaint. The policy cover in itself mentions that "The policy wording attached herewith includes all the standard coverage offered by the company to its customers. Your entitlement for coverage/benefits shall be restricted to the coverage/benefits as mentioned in this policy Schedule issued to you. Please read the Policy Wording in conjunction with the policy schedule. For clarification please call our toll free number" Thus, the contention of the complainant that no terms and conditions were provided comes to an end. If the insured was not provided with the policy wording, then the insured would have called or informed the opposite parties No. 1 and 2 about the non-receipt of the policy wordings, but nothing was received from the side of the insured even while lodging of the claim about the non- receipt of the terms and conditions till the filing of the present complainant. Both the parties are bound with the terms and conditions of the policy, which are duly supplied to the complainant and no claim can be passed beyond the terms and conditions of the policy, therefore, the claim is not payable under the exclusion clause. The present complaint has been filed without any cause of action against the opposite parties. The complainant is estopped by her own act and conduct from filing the present complaint. The complainant has no locus standi to file the present complaint.  The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the same. Alongwtih the written version, the opposite parties No. 1 and 2 have placed on record affidavit of Shweta Pokhriyal, Assistant Manager-Legal Claims, HDFC ERGO General Insurance Company Ltd. is Ex.OP1,2/1, self attested copy of Power of attorney executed in favour of Shweta Pokhriyal is Ex.OP1,2/2, self attested copy of policy is Ex.OP1,2/3, self attested copy of terms and conditions of policy is Ex.OP1,2/4, self attested copy of Death Certificate is Ex.OP1,2/5, self attested copy of death summary is Ex.OP1,2/6, self attested copy of letter dated 15.1.2017 is Ex.OP1,2/7. Claim from Ex. OP 1,2/8.

3        Notice of this complaint was sent to the opposite party No. 3 but no one appeared on behalf of opposite party No. 3 and consequently, the opposite party No. 3 was proceeded against exparte.

4        We have heard the Ld. counsel for the complainant and opposite parties No.1  and 2 and have carefully gone through the record placed on the file.

5        In the present complaint, Kuldeep Singh husband of complainant No.1 and father of complainant No.2& 3 , took an accidental life insurance policy bearing no. 2999201363863001 from the O.P No 1 and insurance premium obtained by the O.P No.1 through cheque/no./DD/Funds Transfer (s1-260920-AL-2509) Dated 26/09/2017 through agent HDFC bank. Kuldeep Singh son of karnail Singh was retired from Indian Army. Kuldeep Singh purchased a Maruti Alto K10 VXI from jaycee motor near petrol pump Amritsar Rd. Taran Taran and paid Rs 1,00,000/- in cash to Jaycee Motors, Taran Taran and Rs. 2,56,761/-by availing loan from opposite party No.2 . The opposite party No.2 as per its policy of securing loan insured  Kuldeep Singh with accidental life insurance with insurance cover of Rs 5,00,000/- for accidental death and Rs 1,00,000/- as loss of job and Rs 1,50,000/- as householders coverage and Rs 5,00,000/- for permanent total disability and partial disability and Rs 1,00,000/- for accidental hospitalization and Rs 1,00,000/- for critical illness and Rs 5,00,000/- for credit shield insurance and Rs 3500/- for garage cash. The insurance certificate was provided by opposite party No.2 through policy of opposite party No.1 having policy number 2999201363863001 for which he paid total amount of one time premium Rs 6761/-which was obtained by opposite party No. 1 through opposite party No.2 vide cheque / No. / DD / funds transfer ( S1-260920-AL-2509) Dated 26/09/2017. Kuldeep Singh died due to his critical illness On dated 28th  November 2017 and complainants submitted the claim form along with the original policy, death certificate of deceased kuldeep Singh and other required documents with the opposite parties. The opposite parties failed to pay the claim to the complainants and wrongly repudiate the claim of the complainants with repudiation letter dated 15th January 2018. Further at the time of insurance policy the O.Ps did not supply the insurance policy and terms and conditions to insurer . Nor the O.Ps orally explained the terms & conditions to the insurer deceased Kuldeep Singh.

6        O.P NO. 1 & 2 stated in their written version that the deceased Kuldeep Singh died on 28/11/2017 due to critical illness. That after the death of the insured the complainant lodged claim with the answering respondents seeking benefits under critical illness section of the policy.  As per the death summary the insured was admitted in Fortis Hospital on 18th November 2017 and unfortunately expired on 28th November 2017. The said period falls within 90 days.  That as per the terms and conditions of the policy the respondent company is not liable to pay any claim under critical illness if the critical illness is diagnosed within the first 90 days of the policy that any critical illness which is diagnosed within the first 90 days of the policy is excluded from the purview of the policy. The relevant condition is reproduced here in below:-

SPECIFIC EXCLUSIONS APPLICABLE TO SECTION 1

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 any of the following:

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.

7        It is submitted that the insured was admitted in the hospital within the first 90 days of the policy inception .That the policy commenced on 26th September 2017 and the critical illness was diagnosed on 18th November 2017 .Therefore ,for this reason the claim of the complainant is not payable under the policy terms and conditions and the same was communicated to the complainant vide letter dated 15th January 2018. That complainant has alleged that policy terms and conditions were not provided by the answering respondent.  It is pertinent to mention here that the policy was issued to the insured in the year 2017 and therefore the insured was the right person to raise the objection and the same was never raised till the filing of the present complaint.  It is pertinent to mention here that the policy cover in itself mentioned that “the policy wording attached here with includes all the started coverage offered by the company to its customers. Your entitlement of coverage benefits shall be restricted to the coverage benefits as mentioned in this policy schedule issued to you.  Please read the policy wording in conjunction with the policy schedule. For clarification please call our toll free number.” Thus, the contention to the complainant that no terms and conditions were provided come to an end. Hence, Both the parties are bound with the terms and conditions of the policy which are duly supplied to the complainant and no claim can be passed beyond the terms and conditions of the policy , therefore the claim is not payable under the exclusion clause.

8        As a result of the Above discussion we are of the considered view that, there is no dispute regarding the purchase of the policy and death of the complainant. The only dispute between the parties is of regarding terms and conditions of the policy whether the same has been supplied by the O.Ps to the complainant or not . As the claim was rejected by the O.Ps on the ground that the illness which has been stated by the complainant has a specific 90 days of waiting period as per the policy terms and conditions. On other hands, Ld. counsel for the complainant has contended that the opposite parties have not explained the terms and conditions of the policy in question to the complainant and same are not supplied or explained to him at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. 

9        The O.Ps could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured ,when and through which mode? Onus to prove that terms and conditions of the policy were supplied to the insured lies upon O.Ps. It is clear that opposite parties have failed to prove on record that they have supplied the terms and conditions of the policy to the complainant as such these terms and conditions particularly the exclusive clause of the policy is not binding upon the insured. The insurance law court makes it that utmost good faith must be observed by the Contracting parties.  Good faith forbids  either party from concealing what he privately knows ,to draw the other into a bargain from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, similarly it is the duty of the insurers and their agents to disclose all material facts (terms and conditions)  within their knowledge, since obligation of good faith applies to them equally with the assured. In such a situation the repudiation made by O.Ps, regarding genuine claim of the complainant proves the deficiency and unfair trade practice on behalf of the opposite parties. All conditions which generally are hidden need to be simplified so that these are easily understood by a person at the time of buying any policy.  The insurance companies in such cases rely upon clauses of the agreement which a person is generally made to sign on dotted line at the time of obtaining the policy.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

10      In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite parties No. 1 and 2 are directed to make the payment of Rs. 1,00,000/- to the complainant. The complainant has been harassed by the opposite parties No. 1 and 2 unnecessarily for a long time. The complainant is also entitled to Rs. 15,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Parties No. 1, 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  The present complaint against opposite party No. 3 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

29.02.2024                              

 
 
[ Sh.Charanjit Singh]
PRESIDENT
 
 
[ Mrs.Nidhi Verma]
MEMBER
 
 
[ SH.V.P.S.Saini]
MEMBER
 

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