DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

CC No.235 of 06-10-2020

Decided on :15-06-2023

Rajvinder Kaur aged about 35 years Wd/o Kalakar Singh R/o House No.6, Village Jhunir,Tehsil Sardulgarh, District Mansa.

........Complainant

Versus

1.HDFC ERGO General Insurance Company Limited, Sixth Floor, 3038-A, Leela Business Park Andheri Kurla Road, Andheri (East) Mumbai-400059, through its Regional Manager.

2.Housing Development Finance Corporation Limited, (HDFC), Phase I, Model Town, Bathinda, through its Branch Manager.

3.Housing Development Finance Corporation Limited, (HDFC), SCO153-155, Sector 8-C, Chadigarh, through its Regional Manager.

.......Opposite parties

Complaint under Section 35 of the Consumer Protection Act, 2019

QUORUM:-

Sh.Lalit Mohan Dogra, President

Sh. Shivdev Singh, Member

Present:-

For the complainant : Sh.B.L Sachdeva, Advocate.

For opposite party No.1 : Sh.Varun Gupta, Advocate.

For opposite party Nos.2 and 3 : Sh.Vinod Garg, Advocate.

ORDER

Lalit Mohan Dogra, President

1. The complainant Rajvinder Kaur (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 before this Commission against HDFC ERGO General Insurance Company Limited and Others (here-in-after referred to as opposite parties).

2. Briefly, the facts of the complaint as pleaded by the complainant are that her husband Kalakar Singh applied for a housing loan with opposite party No.2 for the amount of Rs.25,00,000/- for purchase the residential plot and for construction of the house. Kalakar Singh deceased was serving as ETT Teacher at Village Makhe wala Block Jhumir-1 District Mansa.

3. It is alleged that being a Government employee Kalakar Singh approached opposite party No.2 for the sanction of housing loan in the year 2017. At the time of applying the loan with opposite party No.2, Kalakar Singh also submitted his salary statement, employer certificate, PAN Card and other necessary ducuments regaraing re-payment of loan amount as demanded by opposite party No.2. At the time of sanctioning the loan of Rs.25,00,000/- in OCT 2017 as per RBI guidelines, opposite party No.2 also raised condition that Kalakar Singh is required to take the Insurance Policy of Rs.25,00,000/- equal to the loan amount for the security of the loan amount of opposite party No.2, in case of any miss-happening and officials of opposite party No.3 called the officials of opposite party No.1, who is the sister concern of opposite party Nos.2 and took the signatures of deceased Kalakar Singh on blank proposal form on 6.10.2017 and subsequently, issued loan amount in favour of Kalakar Singh pre-owner of the residential house against which the loan was sanctioned by opposite party No.2.

4. It is further alleged that opposite party No.2 sanctioned the loan to deceased Kalakar Singh on priority basis being a Government employee. On the asking of opposite party No.2, opposite party No.l obtained the signatures of Kalakar Singh on blank proposal. Kalakar Srigh after obtaining the loan amount, purchased the residential house and opposite party No.2 kept the original sale deed of the residential house hypothecated as additional security against the said loan amount. The officials of opposite party No.1 i.e. after obtaining the signatures of deceased Kalakar Singh on blank proposal form and quotation form, filled the same by amending the date from the husband of the complainant and also took the blank signed cheques from deceased Kalakar Singh and complainant. Other necessary paper regarding the address, age proof and employment etc. were supplied to opposite party No.1 by opposite party No.2 directly under their arrangement.

5. It is further alleged that the complainant is the nominee of deceased Kalakar Singh in the insurance cover. Opposite party No.1 issued the policy bearing No.2918201970618200000 w.e.f. 31.10.2017 in favour of deceased Kalakar Singh. On 10.10.2019, Kalakar Singh was suddenly affected with fever and remained hospitalized and later on, he died on 18.11.2019. In this regard, the matter was reported to opposite parties with their office at Bathinda. After the death of the policyholder, the complainant submitted necessary information and documents to opposite parties alongwith copies of policy, death certificate, medical history and other relevant required documents etc. After the death of Kalakar Singh, opposite party No.2 started harassing and humiliating the complainant for repayment of the loan in lump-sum as the only earning hand Kalakar Singh, husband of the complainant had died in the hospital suddenly.

6. It is further alleged that opposite party No.1 sister concern of opposite party No.2 repudiated the insurance claim of Rs.25,00,000/- alongwith other benefits vide letter dated 2.1.2020 only with the remarks as stated that 'WE HAVE OBSERVE THE DECEASE (ALCOHOLIC LIVER DISEASE) IS CAUSED BY THE USED OF ALCOHAL SECTION 3 PF THE POLICY TERMS AND CONDITIONS. STATS THAT-:.'LEVER DISEASE SECONDARY TO ALCOHAL OR DRUG MISUSE IT EXCLUDED HENCE THIS CLAIM IS BEING REPUTIATED' that is against the law and rules and violation of the spirit of the policy.

7. It is further alleged that letter dated 2.1.2020 was even not posted to the complainant intentionally even pressurized the complainant for repayment of the loan amount that is violation of laws and rules of the Reserve Bank of India and same was collected now and this complaint filed with the limitation. After issuing the letter, opposite party No.2 started pressurizing tactics for the recovery of balance loan amount. The complainant demanded no due certificate, original sale deed, complete account statement with details of the payment received by opposite party No.2 from the complainant, but opposite party No.2 has failed to supply the same with malafide intention. The original sale deed is still in the custody of opposite party No.2. The insurance claim under policy bearing No.2918201970618200000 issued by opposite party No.2 under the directions of opposite party No.2 has been repudiated on flimsy grounds with malafide intention to grab the claim of the complainant. Opposite parties neither gave any satisfactory reply to the complainant nor paid any single penny to her on account of death of her husband Kalakar Singh. Opposite party No.2 repudiated the insurance claim of Rs.25,00,000/- alongwith other benefits vide letter dated 2.1.2020 against the laws without any cogent ground. Opposite party No.2 did not consider the attendance/presence in school duties, did not consider the medical history of the deceased Kalakar Singh even the sudden illness/death was not considered and moreover the various tests were found normal of the deceased Kalakar Singh and he was ever fit and healthy person before October 2019.

8. It is further alleged that the death of the deceased Kalakar Singh did not show even in the medical history that any reason exist since long that was only sudden fever comes and later dies and all the test reports proved that the reason of the death was sudden and even he remained fit and attended the school duty regularly approximately 2 year after sectioning of the loan and no health problem was ever came before the month of October 2019 and any fever was even not came before October 2019. Opposite party No.2 has wrongly repudiated the insurance claim. It did not take any expert opinion on the medical history, test reports and other medical record of the deceased Kalakar Singh from the doctors of any Board or institution and only denial of claim, unless its proves, it is illegal one and against the laws and also violation of the guideline and rules of RBI.

9. It is further alleged that due to non-payment of full benefits of the policy on account of death of Kalakar Singh, the complainant has suffered from mental, agony, pains and sufferings.

   On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay the entire claim i.e. Rs.25,00,000/- alongwith bonus, interest and other benefits including accidental benefits alongwith interest @18% per annum from the date of death of insured till the date of payment as well as the damages for mental, agony, pains and sufferings for which she is entitled for the compensation amount of Rs.25,000/- due to the wrong act and conduct of opposite parties alongwith Rs.11,000/- as costs of the complaint. The complainant has also prayed for directions to opposite party No.2 to return the original sale deed and also supplied no due certificate and complete account statement with details of the interests and principal amount separately and details of the payments received by opposite party No.2 from her time to time and blank signed cheques and no due certificate, original sale deed, complete account statement with details of the interest, details of the payment received by opposite party No.2 from her and blank signed post dated cheques of her husband Kalakar Singh.

10. Upon notice, opposite party No.1 appeared through counsel and contested the complaint by filing its separte written version and pleaded that the claim of the complainant was repudiated on the ground that the claim fell under the EXCLUSION CLAUSE of the terms and conditions of the policy. The insured i.e. Kalakar Singh expired on 18.11.2019 due to Cardiac Arrest. He was diagnosed with Alcoholic Liver Disease, Alcoholic Hepatitis, ACLF, Sepsis, Coagulopathy, Thrombocytopenia, Renal Failure, Hepatic Encephalopathy, Dycelectralytemia and Ascites. As per the terms and conditions of the policy 'Liver disease secondary to alcohol or drug misuse is excluded'. As such, the claim of the complainant was repudiated.

11. It is further pleaded that Kalakar Singh was insured for the period from 31.10.2017 to 30.10.2022 under 'Home Suraksha Plus Policy' by opposite party No.1 for benefits as detailed in coverage details of the policy subject to conditions and exclusions of the policy wordings. The benefits under the policy are governed by the terms and conditions of the policy and liability of opposite party No.1 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. The claim for death of Kalakar Singh was lodged by the complainant and as per death summary submitted by the complainant, it was found that the insured was admitted at Sohana Hospital on 12.11.2019 under the diagnosis of Alcoholic Liver Disease, Alcoholic Hepatitis, ACLF, Sepsis, Coagulopathy, Thrombocytopcnia, Renal Failure, Hepatic Encephalopathy, Dycelectralytemia and Ascites and expired on 18.11.2019 following cardiac arrest. Opposite party No.1 also quoted Section 3:-

    “MAJOR MEDICAL ILLNESS & PROCEDURES

    End Stage Liver Disease resulting in ...... hypertension

    Liver disease secondary to alcohol or drug misuse is excluded."

    The claim was repudiated on the ground that the claim fell under the EXCLUSION CLAUSE of the terms and conditions of the policy and its intimation was given to the complainant vide letter dated 2.1.2020.

12. Opposite party No.1 has also raised the legal objections that the complaint is not maintainable. As such, it is liable to be dismissed. The deceased assured has violated the genuine terms and conditions of the policy, hence the complainant being nominee is not entitled for any claim under the policy. The complainant has no cause-of-action to file the complaint. The intricate questions of law and facts are involved in this case. The parties have to lead her/its evidence by examining the witnesses and witnesses are to be cross-examined by the other party. The procedure under 'Act' is summary in nature and complainant, if so advised, may file civil suit seeking the alleged relief. The complainant is estopped from filing the complaint by her own acts, conduct, omissions and acquiescence. As such, the complaint is liable to be dismissed on this score alone. It is false, frivolous and vexatious in nature and it has been filed in order to cause undue harassment to opposite party No.1. The complainant has suppressed the material facts from this court and it is a settled legal preposition that 'one who seeks justice must come to the court with clean hands'. She has failed to disclose any legal and valid cause-of-action against opposite party No.1 to file the complaint. She has created a false story in her complaint to mislead this Forum by false and frivolous facts and circumstances of this case. Neither there is any deficiency in services on the part of opposite party No.1 nor opposite party No.1 has indulged in unfair trade practice. As such, the case of complainant does not fall within the ambit of provisions of law. Opposite party No.1 floats the insurance schemes for the public in general after prior approval of the Insurance Regulatory & Development Authority ("IRDA") and all the terms and conditions of the respective insurance policies are set by 1RDA constituted under the IRDA Act, 1999 and Insurance Act, 1938.

13. Further legal objections are that opposite party No.1 after evaluating the claim under the policy found that the insured concealed the material facts. The non disclosure was vital as the assured was under a bounden duty to disclose the true and correct facts with regard to his medical history as the same was important to underwrite the correct risk in issuance of the policy. By not disclosing the true and correct facts, the assured took away the right of opposite party company to underwrite the policy and induced it to issue the policy on false and incorrect information. Had the true and correct facts been known to opposite party No.1, the policy would not have been issued to the assured. The complainant was well aware of the true and correct facts and she has still chosen to hide the same from this Forum. She has tried to challenge the veracity of decision of opposite party No.1 to repudiate the claim. The company has repudiated the claim under the policy by a speaking order that lists out the specific reasons for the decision. By no stretch of imagination, this decision can be brought under the umbrella of 'Deficiency in Services'. The complainant should approach the civil courts in order to challenge the veracity of the decision of opposite party company to repudiate the claim. The complaint is devoid of any material particulars and complaint has been filed merely to harass and gain undue advantage and unjustified monies from opposite parties. The complaint has been filed with ulterior motive malafide intention to cause harassment and prejudice to opposite party No.1, which is a company of long standing and high repute and to extract money from it without just cause or valid reason. The subject matter for the policies itself is proved to be initiated by fraudulent act. As such, the policy is declared void by opposite party No.1 and consequently, no benefit or amount under the policy becomes payable as the complainant is guilty of suggest vari supresso falsi. This Forum has no jurisdiction to entertain the complaint. The complainant has failed to demonstrate any deficiency in service on the part of opposite party No.1.

14. It is further pleaded that 'Deficiency' is defined U/s 2(g) of 'Act' that means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that is required to be maintained in pursuance of a contract. In this case, opposite party No.1 has strictly acted as per the terms and conditions of the policy contract. The terms of the policy are in the nature of a contract and their interpretation has to be made in accordance with the strict construction of the contract. The Forum cannot pass any order in contravention to the terms and conditions of the policy contract. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has on facts been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of opposite party No.1. The deficiency in service has to be distinguished from the tortious acts of opposite party No.1. In the absence of deficiency in service, the aggrieved person may have a remedy under the common law to file a suit for damages but can not insist for grant of relief under the act for the alleged acts of commission and omission attributable to opposite parties which otherwise do not amount to deficiency in service. In case bonafide disputes, no wilful fault, imperfection, shortcome or inadequacy in the quality nature and manner of performance in the service can be informed. If on facts, it is found that the person or authority rendering service had taken all precautions and considered all the relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of opposite party No.1 is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under 'Act'. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafides, rashness, haste or omission and like may be the factors to ascertain the deficiency in rendering services.

15. It is further pleaded that the insurance is a contract of utmost good faith and its contract is base on Doctrine of Uberrima Fides and even if any due diligence is done by the insurance company, it does not change the basic element of an insurance contract. The claim made by the complainant was repudiated by opposite party No.1 on the grounds that the claim of the assured was excluded from the scope of the policy. The complainant has sought a relief from this Forum that she is not entitled to get under the terms and conditions of the subjected insurance policy. As such, no deficiency in services on the part of opposite party No.1 has been demonstrated by the complainant.

16. It is further pleaded that opposite party No.1 is not a necessary or a proper party to present dispute and accordingly this complaint ought to be dismissed against it. The complaint being frivolous and vexatious is liable to be dismissed U/s 26 of 'Act'. The complaint is not at all maintainable since the complainant's claim does not fall within the insurance as granted. The claims are paid by any insurance company out of the common pool of funds belonging to all policyholders of the company which makes it obligatory upon the insurance company to check the genuineness and admissibility of each claim before honouring it in the larger interest of all the policyholders. The insurance company cannot do injustice to genuine policyholders by allowing inadmissible claims.

17. On merits, it is pleaded that the complainant lodged the claim with opposite party No.1 on 17.12.2019 and opposite party No.1 received the claim under the policy and after going through the entire medical record and other documents found that the assured was alcoholic 17 years prior to insurance, so it is violation of policy trems and conditions and accordingly, it repudiated the claim under policy. After controverting all other averments of the complainant, opposite party No.1 has prayed for dismissal of complaint.

18. Opposite party Nos.2 and 3 appeared through counsel and contested the complaint by filing their joint written version and raised the legal objections that the complainant has concealed the material facts and documents from this Forum and them. As such, she is not entitled to any relief. She has concealed the fact that the dispute in the main complaint is with regard to death claim of Kalakar Singh that is to be decided and processed by opposite party No.1. Her grievance is directed against opposite party No.1 who has allegedly repudiated the claim. Opposite party Nos.2 and 3 represent an independent entity having no control over the affairs of opposite party No.l. A loan of Rs.25,00,000/- was availed by Kalakar Singh deceased from opposite party Nos.2 and 3 and same was disbursed for construction property against loan agreement dated 23.10.2017 bearing No.627105534. Thereafter another loan of Rs.1,09,609/- was availed by deceased Kalakar Singh and same was disbursed for insurance premium funding against loan agreement dated 31.10.2017 bearing No.628716328. Both the accounts are in default and as on 30.11.2020, an sum of Rs.27,01,969/- and Rs.1,10,201/- are due and opposite party Nos.2 and 3 are entitled to recover the amount due in accordance with law. In case the insurance claim is held payable, same may be ordered to be paid to opposite party Nos.2 and 3 for adjustment of loan amount. The complainant is not 'consumer' of opposite party Nos.2 and 3 as her grievance is primarily against the insurance company. As such, the complaint is liable to be dismissed. She has no locus-standi or cause-of-action to file the complaint against opposite party Nos.2 and 3.

19. On merits, it is admitted that Kalakar Singh husband of the complainant availed housing loan of Rs.25,00,000/- on 23.10.2017 and another loan of Rs.1,09,609/- for insurance premium funding on 31.10.2017. After controverting all other averments of the complainant, opposite party Nos.2 and 3 have prayed for dismissal of complaint.

20. In support of his complaint, the complainant has tendered into evidence documents (Ex.C-1 to Ex.C-44).

21. In order to rebut the evidence of complainant, opposite party No.1 tendered into evidence affidavit of Savinder Singh dated 30.9.2020 (Ex.OP-1/1) and other documents, (Ex. OP-1/5).

22. Opposite party Nos.2 and 3 tendered into evidence documents, (Ex.OP-2/1 to Ex.OP-2/5).

23. We have heard learned counsel for the parties and gone through the record.

24. Counsel for the complainant has argued that the husband of the complainant had obtained housing loan from opposite party No.2 and at the time of sanctioning the loan in October 2017 as per RBI guidelines, opposite party No.2 also raised condition and issued policy of insurance of Rs.25,00,000/- to secure the loan through opposite party No.1. As such, policy of insurance was issued by opposite party No.1 which is sister concern of opposite party Nos.2 and 3. At the time of issuance of policy, officials of opposite party No.1 obtained the signatures of now deceased Kalakar Singh on blank proposal form and other documents. The complainant is nominee on the said policy of insurance.

25. It is further argued that on 10.10.2019, Kalakar Singh was suddenly affected with the fever and remained hospitalized and later on, he died on 18.11.2019. The matter regarding death was reported to opposite parties. After the death of the policyholder, the complainant had submitted all the documents to opposite parties. However, instead of processing the claim, opposite parties started harassing and humiliating the complainant and started compelling the complainant to pay the loan amount.

26. It is further argued that opposite party No.1 instead of settling and paying the loan amount to opposite party Nos.2 and 3, had illegally and unlawfully repudiated the claim vide letter dated 2.1.2020 with remarks that 'WE HAVE OBSERVED THE DECEASED (ALCOHOLIC LIVER DISEASE) IS CAUSED BY THE USED OF ALCOHAL SECTION 3 PF. THE POLICY TERMS AND CONDITIONS STATES THAT -:.'LEVER DISEASE SECONDARY TO ALCOHAL OR DRUG MISUSE IT EXCLUDED HENCE. THIS CLAIM IS BEING REPUTIATED'.

27. It is further argued that the insured was not suffering from any such dicease as alleged and he has been attending his school being school teacher, which is evident from teacher attendance register, (Ex.C38, Ex.C39, Ex.C41 and Ex.C42).

28. It is further argued that the death of deceased since did not show in the medical history that any reason exist since loan and all the test reports prove that death was sudden.

29. It is further argued that opposite parties have not taken any expert opinion on medical history, test reports and other medical record of deceased from any Board of Doctors and complainant was being harassed by opposite party Nos.2 and 3 for repayment of loan. Repudiation of claim by opposite party No.1 amounts to deficiency in services and during the course of arguments, learned counsel for complainant has suffered statement that since house of the complainant was put on sale by opposite party Nos.2 and 3. As such, she has settled dispute and entered into compromised with opposite party Nos.2 and 3. As such, she does not want to claim reliefs against opposite party Nos.2 and 3 at this stage.

    To support these submissions, learned counsel for complainant has cited following case law:-

    i) Decision of Hon'ble Supreme Court of India in case title Gokal Chand(D) Vs. Axis Bank Ltd. & Anr., 2023(1) MLJ 220;

    ii) Decision of National Commission, New Delhi in Revision Petition No.2892 of 2011 from Order dated 22.6.2011 of the Andhra Pardesh State Consumer Disputes Redressal Commissio, Hyderabad in First Appeal No.1154 of 2009, Dated 20.1.2012 case title SBI Life Insurance Company Ltd. Vs. D Leelavathi and Another;

    iii) Decision of National Commission, New Delhi in Revision Petition No.2097 of 2017 against the Order dated 23.2.2017 in Appeal No.213 of 2016 of the State Commission Maharashtra, Dated 31.5.2019 case title Reliance Life Insurance Co. Ltd. and Anr. Vs. Tarun Kumar Sudhir Halder;

    iv) Decision of National Commission, New Delhi in First Appeal No.1071 of 2018, Dated 21.9.2022 case title Sucha Singh Vs. Head Branch Office and Anr.;

    v) Decision of National Commission, New Delhi in Revision Petition No.1516 of 2006 from Order dated 21.3.2006 in Appeal No.A-518 of 2002 of State Consumer Disputes Redressal Commission, Delhi, Dated 14.5.2010 case title National Insurance Company Ltd. Vs. Sardar Kulbir Singh;

    vi) Decision of National Commission, New Delhi in Revision Petition No.91 of 2013 against Order dated 13.9.2012 in Appeal No.460/2012 of Haryana State Consumer Disputes Redressal Commission, Punchkula, Dated 27.10.2016 case title Ravinder Singh Bindra Vs. National Insurance Company Ltd.

    vii) Decision of Punjab State Commission, Chandigarh in First Appeal No.500 of 2010, Dated 24.2.2014 case title Neeru Diwan Vs. Bajaj Allianz General Insurance Company Ltd.;

    viii) Decision of Kerala State Commission, Thiruvananthapuram in First Appeal No.A/12/335, Dated 18.4.2013 case title United India Insurance Company Vs. Safiya;

    ix) Decision of Haryana State Commission, Panchkula in First Appeal No.697 of 2005, Dated 23.11.2011 case title Life Insurance Corporation of India and Anr. Vs. Suman;

30. On the other hand, counsel for opposite party No.1 has vehemently argued that the claim of the complainant was repudiated on the ground that the claim fell under exclusion clause of terms and conditions of policy as insurance Kalakar Singh expired on 18.11.2019 due to Cardiac Arrest and he was diagnosed with Alcoholic Liver Disease, Alcoholic Hepatitis, ACLF, Sepsis, Coagulopathy, Thrombocytopenia, Renal Failure, Hepatic Encephalopathy, Dycelectralytemia and Ascites and as per policy terms and conditions, liver disease secondary to alcohol or drug misuse is excluded. As such, the claim was rightly repudiated.

31. Counsel for opposite pary No.1 has also referred to policy of insurance documents, (Ex.OP1/5) Section 3 “MAJOR MEDICAL ILLNESS and PROCEDURES and End Stage Liver Disease and had also made reference to the prescription slip of Mansa Medicity dated 10.10.2019 wherein it is mentioned as alcoholic liver dicease and has further referred to death summary of Sohana Hospital dated 18.11.2019 and has argued that in column of diagonosis of death summary, it is mentioned as alcoholic liver disease and alcoholic hepatitis and it is further mentioned that patient was alcoholic from 17 years and as such, counsel for opposite party No.1 has argued that since the insured died due to liver disease caused due to excessive use of alcohal. As such, he was not entitled to claim amount and claim was rightly repudiated by the insurance company.

32. We have given careful consideration to these submissions and gone through the case law cited by learned counsel for complainant.

33. It is admitted fact that the husband of the complainant was employed as teacher and he had approached opposite party Nos.2 and 3 for obtaining the loan for purchase of residential plot and construction of house. It is further admitted fact that opposite party No.1 being sister concern of opposite party Nos.2 and 3 had issued policy of insurance vide policy bearing No.2918201970618200000 w.e.f. 31.10.2017. It is further admitted fact that during the continuation of loan and policy of insurance, insured Kalakar died on 18.11.2019. It is further admitted fact that the claim lodged by the complainant was repudiated by opposite party No.1 vide repudiation letter, (Ex.C2). It is further admitted fact that the complainant has settled her dispute with opposite party Nos.2 and 3 by making them payment of due amount and she does not claim any reliefs against opposite party Nos.2 and 3.

34. The matter in dispute between the complainant and opposite party No.1 is regarding repudiation of claim of the complainant on the basis of death summary of Sohana Hospital, (Ex.OP1/2) and prescription slip of Mansa Medicity as per which the insured is stated to have died due to alcohal liver disease. However, counsel for complainant has vehemently argued that lab reports, (Ex.C4 to Ex.C30) and discharge summary of Mansa Medicity, (Ex.C31) do not show any such alcoholic liver disease, rather investigation report, (Ex.C30) shows that liver is of normal size and shape and in the column of Impression: Findings suggest Chronic hepatic parenchymal disease with portal hypertension. Even discharge summary of Mansa Medicity also does not show any alcoholic liver disease, rather column of Diagonosis clearly shows Chronic liver diseas (decompensated) with actue hepatitis. In the Notes column, further note has been given by treating doctor that patient got recovered after treatment of 7-8 days with I.V antibiotic, I.V fluids and now being discharge on oral medications and even in ultrasound report, (Ex.C37) in the column of Liver, there is no such finding of alcoholic liver disease. Even the attendance register of school also shows regular attendance of insured in the school from January 2016 to December 2017 and thereafter January 2018 to December 2018 and thereafter attendance register, (Ex.C41) from January 2019 to November 2019 also shows regular attendance of deceased in his school and certificate, (Ex.C42) issued by head teacher clearly certifies that deceased was on duties from 1.1.2019 to 9.10.2019 and thereafter he was on medical leaves from 10.10.2019 to 18.11.2019.

35. This Commission is of the view that insured has been regularly attending his school and he was on duties up to 9.10.2019 and if insured was suffering from such severe alcoholic liver disease, in that case could not have performed his duties as teacher in his school. Moreover death summary, (Ex.OP1/2) is not based on any clinical test report and rather same has been written on the basis of reference given by treating doctor. Even, opposite parties have not placed on record any clinical test report or authentic report of any lab to certify this fact that deceased was suffering from any alcoholic liver disease and alcholic hepatitis.

36. Moreover a perusal of Ex.C44, certificate of Sohana Hospital clearly shows that doctor of said hospital certified that the said diagnosis of alcoholic liver disease was made as per history given by relative and said reference was not certified or confirmed their any test or liver biopsy, meaning thereby that except death summary, (Ex.OP1/2) and reference of Mansa Medicity in discharge summary, alleged alcoholic liver disease has not been confirmed by any clinical approved test report issued by any authentic lab. Moreover the complainant has placed on record clinical test reports, (Ex.C5 to Ex.C30) wherein no such alcoholic liver disease was ever confirmed by any lab report. Even no affidavit of any treating doctor or person who recorded alleged history of the patient has been filed by opposite party No.1 and said fact is confirmed by making reliance upon case law of Punjab State Commission, Chandigarh in case title Neeru Diwan Vs. Bajaj Allianz General Insurance Company Ltd., 2014(3) CPJ 13 in which it has been held as under:-

    “Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d) and 15 Insurance-Travel care policy-Reimbursement of medical expenditure-Claim repudiated on the ground of suppression of material facts-District Forum dismissed the complaint-Appeal against-Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy and she deliberately suppressed the same-No affidavit of any doctor or person who recorded history of patient-Impugend order set-aside-Reimbursement directed alongwith litigation expenses-Appeal Allowed.”

37. Moreover this Commission if of the view that since opposite party No.1 was securing a huge loan of Rs.25 lakhs. As such, it was obligatory on the part of opposite party No.1 to have got the insured medically examined before issuance of policy of insurance. Even in case law cited above reported in 2023(1) MLJ 220, Hon'ble Supreme Court of India has also given reference in this regard and it had been referred that in case loan amount exceeds Rs.7.5 lakhs, medical examination was compulsory. Althouth, the said facts are in respect of Axis Bank and some other policy, but it had been categorically held by Hon'ble Supreme Court of India that medical examination was compulsory before issuance of policy of insurance and as such, having failed to get the insured medical examined, opposite party No.1 cannot repudiate the claim of the complainant by taking excuse of reference having been made in death summary and that also without any clinical approved lab report and it is held that repudiation of claim by opposite party No.1 vide letter dated 2.1.2020, (Ex.C2) amounts to deficiency in services on its part. Moroever failure to get the insured examined amounts to waiver and in this respect reliance can be placed in case law of Hon'ble Supreme Court in case D.Srinivas Vs. SBI Life Insurance Co. Ltd. and Ors., Civil Appeal No.2216 of 2018 (Arising out of SLP (C) No.14021 of 2017), Dated 16.2.2018 in which it has been held as under:-

    “A insurance Policy-Condition precedent for acceptence of the premium was the medical examination-Underwriter to accept the premium based on the medical examination and not otherwise-Held that very fact that they accepted the premium waived the condition precedent of medical examination.”

38. Accordingly, the complaint is partly allowed and it is held that since opposite party No.1 was required to pay the loan amount of Rs.25 lakhs to opposite party No.2 in case of death of insured, but since the complainant has already paid the loan amount to opposite party No.2, as such, opposite party No.1 is directed to pay Rs.25,00,000/- to the complainant which is sum assured as per policy of insurance alongwith interest @ 9% per annum from the date of filng of complaint i.e. 6.10.2020 till realization and Rs.5000/- as cost on account of mental tension, harassment and litigation expenses. The complaint against opposite party Nos.2 and 3 is dismissed having been rendered infructuous.

39. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

40. The complaint could not be decided within the statutory period due to heavy pendency of cases.

41. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.

    Announced :

    15-06-2023

    (Lalit Mohan Dogra)

    President

     

     

    (Shivdev Singh)

    Member