BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.331 of 2017
Date of Instt. 08.09.2017
Date of Decision: 16.01.2019
Nisha Rani Wd/o Sh. Harish Kumar son of Sh. Sushil Kumar resident of B-X-589, Kishanpura, Jalandhar.
..........Complainant
Versus
1. HDFC Ergo General Insurance Co. Ltd. Through its Branch Manager, Guru Nanak Mission Chowk, Model Town Road, Jalandhar.
2. HDFC Ergo General Insurance Co. Ltd. Through its MD/Chairman/Authorized Representative etc. 1st Floor, 165- 166, Bacjbay Reclamation, H. T. Parekh Marg, Churchgate, Mumbai-400 020.
3. HDFC Bank Ltd. GT Road Branch, Near Narinder Cinema, Jalandhar through its Branch Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna Thatai (Member)
Present: Sh. Karan Kalia, Adv Counsel for the Complainant.
Sh. R. K. Sharma, Adv Counsel for the OPs No.1 and 2.
Sh. V. K. Gupta, Adv Counsel for the OP No.3.
Order
Karnail Singh (President)
1. Brief facts of the complaint are that Harish Kumar son of Sushil Kumar was husband of the complainant, who expired on 09.07.2015. During his life time, Harish Kumar purchased a car Tata Indica Vista bearing registration No.PB08-CV-8678 in his name and for that purpose, he obtained a loan for a sum of Rs.3,76,438/- in the month of November, 2014 from OP No.3 and agreed to repay the said loan amount in 60 installments of Rs.8091/- each. At the time of advancement of the loan husband of the complainant had got insured with the said loan amount of Rs.3,76,438/- and he paid the insurance premium of Rs.6438/- on the said amount including all risk cover mentioned in the policy cover note and after receiving the premium, OPs No.1 and 2 issued policy No.2950200895480500000 under Sarv Suraksha Policy issued on 05.11.2014 valid upto 04.11.2019 and at that time, the OPs No.1 and 2 covered the risk i.e. Loss of Job, Accidental Death, Permanent total Disability/Permanent Partial disability, Accidental Hospitalization, Critical illness, Credit Shield Insurance, Garage cash and householders coverage and husband of the complainant paid the charges of all the risk cover as mentioned in the policy. The risk of loan amount of Rs.3,76,438/- also covered under the credit shield insurance cover and for that purpose, Harish Kumar paid Rs.912/-, which covered sum assured of Rs.5,00,000/-, as total premium of Rs.6430/- paid by the husband of the complainant at the time of inception of said policy. Harish Kumar during his life time had paid 8 installments/EMI of Rs.8091/- and total sum of Rs.64,728/- paid out of the loan amount and unfortunately, husband of the complainant got heart attack on 09.07.2015 and he was taken to Capitol Hospital, Pathankot Road, Jalandhar by his family members, when he was taken to hospital, doctor of the hospital declared him brought dead and he was not medically treated thereafter.
2. That the intimation regarding the death of husband of the complainant was given to the OPs. After death of Harish Kumar, the complainant also paid two installments of Rs.8091/- each to the OP No.3 in the car loan account. The complainant approached to the OPs No.1 and 2 by submitting claim form on 12.08.2015 after completing all the formalities along with death certificate issued by Municipal Corporation, Jalandhar and other documents, but the claim of the complainant was not passed by the OPs. The complainant approached the office of OP No.1 personally number of times, but no reasonable answer has been given to the complainant till today. Thereafter, the brother of the complainant namely Kamal Kumar also sent an email message to the OP to consider the claim of the complainant, but the OP No.1 and 2 did not consider the claim of the complainant and thereafter, a legal notice was served on 18.12.2015, but all in vain, then ultimately complainant filed a consumer complaint on 19.01.2016, but in that complaint, the OPs appeared and filed written reply and argued that the claim of the complainant has been already repudiated on 06.11.2015, but the same has not been challenged by the complainant in the said petition and accordingly, the complainant got permission for the Forum to withdraw the said complaint with permission to file a fresh complaint and accordingly, after getting withdraw the said petition, the instant complaint has been filed, whereby challenged the repudiation letter, which is illegal. The act and conduct of the OPs for repudiating the claim of the complainant itself is illegal, negligent and deficient in service and accordingly, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the remaining loan amount of the car along with interest till today to OP No.3 as per the insurance policy cover and further OPs be directed to reimburse the two installments paid by the complainant after the death of the insured and further OPs be directed to pay compensation of Rs.2,00,000/- and further OPs be directed to pay litigation expenses of Rs.22,000/-.
3. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared and filed joint reply and contested the complaint by taking preliminary objections that the instant complaint is not maintainable against the answering OPs and further submitted that the complainant is playing the tactics just to gain the undue advantage from the answering OPs and to further gain the sympathy of the Forum and further submitted that the complainant through his earlier complaint sought the relief under the coverage of credit shield, though the same was never claimed by the complainant in his earlier claim form. It is further averred that the real and true facts are that the claim under the coverage of critical illness was lodged by the complainant. The answering OPs after scrutinizing and perusal of the medical documents reached to the decision that the claim stands repudiated as per terms and conditions of the insurance policy. The repudiation letter, vide dated 20.08.2015 was addressed to complainant, wherein the complainant was informed about the repudiation of the claim. That as per the policy terms and conditions the company is found liable only when the insured person after the first occurrence of critical illness survives for 30 days. However, in the present case, the Insured/Deceased suffered from Sudden Heart Attack on 09.07.2015, which first occurred on 09.07.2015 and died on the same day. The repudiation letter clearly mentioned that as per the case summary received by the answering OPs No.1 and 2, insured Late Harish Kumar was brought dead to the hospital with no related complaints prior to this episode and that for critical illness is to be admissible under the policy, the insured person has to survive a period of 30 days from the time he was diagnosed for the illness and that the claim of the complainant falls under Specific Exclusions Applicable to Section 1 of the Insurance Policy and further submitted that there is neither any deficiency in service nor any negligence nor any unfair trade practice on the part of the answering OPs No.1 and 2. Repudiating the claim, which is not payable as per terms and conditions of the insurance policy does not amounts to any deficiency in service nor any negligence nor any unfair trade practice, as such, the complaint is liable to be dismissed. On merits, the factum in regard to purchase the insurance policy by the husband of the complainant is admitted and further, it is also admitted that the insurance claim of the complainant has been already repudiated. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. OP No.3 served and appeared through its counsel and filed its separate written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP and the same is liable to be dismissed with heavy cost and further submitted that as per insurance policy obtained by the husband of the complainant, answering OP No.3 is the beneficially and in case, any claim/compensation is granted by this Forum, then the benefit of the same is to be received by the OP No.3. Hence, the present complaint is not maintainable qua OP No.3, the same is liable to be dismissed. On merits, it is admitted that the husband of the complainant obtained a loan from the answering OP, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant qua OP No.3 is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-20 and closed the evidence.
6. Similarly, counsel for the OPs No.1 and 2 tendered into evidence affidavit of Pankaj Kumar, Manager as Ex.OA along with some documents Ex.O-1 to Ex.O-5 and closed the evidence.
7. Similarly, counsel for the OP No.3 tendered into evidence affidavit Ex.OPA along with some documents Ex.OP-1 and Ex.OP-2 and closed the evidence.
8. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.
9. From the scrutiny of the pleading as well as documents placed on the file by both the parties, itself make clear that the husband of the complainant Late Harish Kumar admittedly purchased insurance policy in order to save the loan of Rs.3,76,438/- obtained from OP No.3 and it is also not in dispute that the premium was paid by the husband of the complainant during his life time and further, it is also not in dispute that the husband of the complainant had died and after the death of Harish Kumar, the complainant submitted an insurance claim to the OPs No.1 and 2 with the request that the loan amount, whatsoever remained un-paid towards her husband may be paid to OP No.3/HDFC Bank, but the claim of the complainant has been repudiated by the OPs No.1 and 2 on 20.08.2015, but factum in regard to repudiation of said claim came to notice of the complainant only during the pendency of the previous complaint, which was got withdrawn by the complainant with the permission of the Forum and as such, the question of limitation does not arise in this case.
10. Further we find that the insurance claim of the complainant was repudiated, vide repudiation letter Ex.O-4 dated 20.08.2015 on the ground that the insurance claim of the complainant is not maintainable in view of the terms and conditions of the policy because there is specific exclusion applicable to Section-1 and as per definition of Critical Illness, under which the complainant demanded the insurance claim, says that the insured person has to survive a period of 30 days from the time he was diagnosed for illness, but the said condition is also not fulfilled in the present case because the husband of the complainant was brought dead in the hospital and accordingly, the insurance claim demanded by the complainant under critical illness is not covered and the same is treated as no claim.
11. Now, the entire matter is revolving around the said repudiation letter Ex.O-4 dated 20.08.2015. First of all, we have to go through the copy of Insurance Policy, which is placed on the file by the complainant as Ex.C-7 and similarly the copy of the Insurance Policy also brought on the file by the OP Ex.O-1 along with terms and conditions and in the Insurance Policy, the insured was covered under eight heads, which we like to reproduce as under:-
(a). Accidental Death.
(b). Permanent Total Disability.
(c). Accidental Hospitalization Benefit.
(d). Critical Illness.
(e). Credit Shield Insurance Policy.
(f). Garage Cash.
(g). Householders Coverage.
(h). Loss of Job.
In case of happening of untowards incident with the insured, his legal heirs are entitled to claim all the aforesaid coverage heads because the insured had paid the premium for each heads in total Rs.6438/-, it is not the choice of the OP to cover the case of the insured in any of the head rather the OPs are bound to take the case of the insured under the relevant head and when the insured died leaving behind pending loan amount of the OP No.3, then obviously the case of the husband of the complainant has to be covered under the head of 'Credit Shield Insurance', but for its own benefit and its own sweet will, the OPs No.1 and 2 intentionally considered the case of the complainant under the head of 'Critical Illness', whereas the case of the complainant virtually falls under the head of 'Credit Shield Insurance'. So, we are of the opinion that the case of the complainant has been wrongly and illegally repudiated by the OPs No.1 and 2 under the head of 'Critical Illness'. Though the OPs No.1 and 2 in its reply in Para No.4 at Page No.3 took a plea that the benefit under the 'Credit Shield' is payable to the extent of outstanding loan amount and only if the loss is accidental in nature, but in the present case, the unfortunate death of the insured is not due to any accident, and thus, there is no element of any accident and thus, the benefit under the 'Credit Shield' is not payable and further made reliance upon Section-5 of the Insurance Policy and Copy of the terms and conditions also available on the file along with the insurance policy Ex.O-1.
12. The OP has also denied the benefit of 'Credit Shield' to the complainant simply on the ground that the death of the insured was not caused due to any accident and to that effect, the OP took a shelter of Section-5 of the terms and conditions, which we like to reproduce as under:-
Section-5 Credit Shield Insurance Policy
“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.” Further, the definition of 'Accident or Accidental' is also given in Section-5 (4) as under:-
“Accident or Accidental, means a sudden, unforeseen and involuntary even caused by external, visible and violent means.”
13. Now, we find that the word used in Section-5 is 'Accidental Death', it does not construe the meaning that the death of the insured has to be caused by any accident i.e. motor accident or any type of other accident, but the word is 'Accidental', means all of sudden and accordingly, we find that the OP has took a wrong plea in the written statement that the death of the insured is not due to any accident. So, accordingly, we are of the considered opinion that the claim of the complainant has been wrongly and illegally repudiated by the OP just to save the money of the company, which is apparently a gross negligence and deficiency in service, which should generally be avoid by the insurance companies. So, with these observations, we are of the opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to pay the entire loan amount due in the account of the husband of the complainant along with interest till the date of payment to OP No.3 and further OPs No.1 and 2 are directed to pay compensation of Rs.1,00,000/- for causing un-necessary humiliation, harassment and mental agony, to the complainant and further OPs No.1 and 2 are directed to pay litigation expenses of Rs.10,000/- to the complainant. The entire compliance be made within one month from the date of receipt of the copy of judgment and if the OPs failed to pay the compensation and litigation expenses to the complainant within a stipulated period, then the OPs No.1 and 2 will further liable to pay interest thereon @ 12% per annum from the date of filing complaint i.e. 08.09.2017, till realization. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Thatai Karnail Singh
16.01.2019 Member President
