Haryana

Karnal

CC/735/2019

Sushma - Complainant(s)

Versus

HDFC Ergo General Insurance Company Limited - Opp.Party(s)

Kavinder Singh

09 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.735 of 2019

                                                        Date of instt. 31.10.2019

                                                        Date of decision 09.02.2021

 

1. Sushma (since deceased) wife of late Shri Ram Karan son of Shri Hari Singh residents of Ward no.6, Shastri Nagar, Gharaunda, Tehsil Gharaunda, District Karnal. Now represented through her legal heir i. Meenakshi alies Aarti (daughter) ii Himanshu (son) who already complainants no.1 and 2 in the present complaint.

 

2. Meenakshi alias Aarti d/o late Shri Ram Karan son of Shri Hari Singh,

3. Himanshu son of late Shri Ram Karan son of Shri Hari Singh,

Both residents of ward no.6, Shastri Nagar, Gharaunda, Tehsil Gharaunda, District Karnal.

   …….Complainants   

                                        Versus

 

1. HDFC ERGO General Insurance Company Limited, 2^nd floor, SCO no.237, Sector 12, Urban Estate, Karnal through its authorized signatory.

2. HDFC Bank Ltd. Sector 12, Urban Estate, Karnal, through its authorized signatory.

3. Housing Development Finance Corporation Limited, SCO 153-155, Sector8C, Madhya Marg, Chandigarh 160 008 through its authorized signatory.

    …..Opposite Parties.

      Complaint u/s 12 of the Consumer Protection Act, 1986.       

Before:   Sh. Jaswant Singh……President.      

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present: Shri Kavinder Singh counsel for complainant.

                Shri Sanjeev Vohra counsel for opposite party no.1.

Shri Bhaskar Bhalla counsel for opposite parties no.2 and 3.

               

                (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that Shri Ram Karan (since deceased) was the husband of complainant no.1 and father of complainants no.2 and 3. Shri Ram Karan was employed as A.O., Haryana Police, Madhuban and he expired on 25.09.2019 due to heart attack. The complainants were fully dependent upon the income of Shri Ram Karan and he was karta of the family. The complainant no.1 is suffering from kidney problem and her both kidneys are damaged/dead and she is at last stage of her life as her dialysis is going on twice in a week. She is under treatment of various hospitals for the last about 2-3 years, Chronic Disease Certificate issued by office of Civil Surgeon, Karnal. Shri Ram Karan purchased a house in Shastri Nagar, Gharaunda and sale deed was got registered in the name of complainant no.1 as per the directions of the bank/opposite party (hereinafter referred as to OP) no.2 and a loan was availed for purchasing of house from the OP no.2. As per the advice of OP no.2, Ram Karan obtained an insurance policy from the OP no.1, vide policy no.2918202753801500000, valid from 23.04.2019 to 22.04.2024 whereby the life of Shri Ram Karan as well as property aforesaid were insured by OP no.1. In the said policy, complainant no.1 was appointed as nominee and it was assured that in case of any mis-happening regarding life of insured due to illness, accident etc. and due to damage to the property aforesaid due to fire/theft etc., the OP no.1 will pay 100% benefit to the insured/nominee/LRs. Shri Ram Karan paid the premium to the OP no.1 regarding the said policy.

2.             Further, Shri Ram Karan was hale and hearty and was having no previous disease. On 25.09.2019 while Shri Ram Karan was preparing to go on his duty in the morning hours, then he died due to heart attack and was taken to Park Hospital, Panipat, but he died on the way.  Complainant no.1 informed the OPs regarding the said mis-happening. Complainant no.1 approached the OPs and submitted all the required documents as demanded by the OPs including death certificate of Ram Karan. Thereafter, complainant  no.1 visited the office of OPs several times and requested to give the benefit of the claim but OPs did not pay any heed to the request of the complainant and lingered the matter on one pretext or the other and lastly repudiated the claim of the complainant, vide letter dated 24.10.2019 on the ground that Cardiac arrest/ailment is not covered under Critical Illness enlisted in Section 3 Major Medical Illness and procedure, whereas, infact the cardiac arrest is heart attack and is part of myocardial infraction mentioned at Sr. no.9 of critical illness and is covered under critical illness but OP no.1 just to save its liability wrongly repudiated the claim of the complainant. Ram Karan has purchased the policy and paid the premium to the OPs and he died due to heart attack and as such, the OPs are legally bound to pay all the benefits to the complainant including dependently child education benefit to complainant no.2 and 3 and other benefits under the abovesaid policy but OPs did not do so. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was rightly repudiated by the OP no.1 on the ground that the ailment due to which the insured/deceased died, i.e. “Cardiac Arrest” is not mentioned in the list of ailment under section 1 Critical Illness under Home Credit Assure Policy. It is further pleaded that the policy in question is Home Credit Assure Policy which provides coverage’s against ailment as suffered by the insured due to specified Major Medical Illness as mentioned under the list of Major Medical Illness. It is further pleaded that complainant has claimed against the death of her deceased husband, however, against the claim, no medical document was submitted by the complainant in order to ascertain that the death of the insured happened due to the ailment as mentioned under the list. It is further submitted that the claim is not payable as per the policy condition. Since in the present case the ailment i.e. Cardiac arrest and chest pain was not included in the list of ailment as mentioned under section 3 of Major Medical Illness, hence the claim was repudiated. It is further pleaded that the claim under Dependent Child Education benefit is paid only when the injury leading to the death or disability is an Accidental bodily Injury. Since the death of the insured was not due to any accidental bodily injury, hence the claim under Dependent Child Education Benefit is not payable. Hence, there is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.2 appeared and filed its separate written version raising preliminary objections with regard to cause of action and maintainability; On merits, it is pleaded that complainant has inadvertently mentioned the name of OP nbo.2 as HDFC Bank Ltd. which is a distinct entity from HDFC Ltd. whereas the financial assistance has been advanced by OP no.2.  It is further pleaded that the grievance of the complainant is directed against the OP no.1 who has allegedly repudiated her claim. It is further pleaded that complainant had availed a house loan of Rs.12,00000/- from the OP no.2. The same is to be repaid as per agreed terms of the loan agreement. There is no deficiency in service on the part of the OP no.2 and prayed for dismissal of the complaint.

5.             Learned counsel of OP no.3 suffered a separate statement dated 09.11.2020, vide which OP no.3 adopted the written version filed by OP no.2

6.             Complainant tendered into evidence her affidavit Ex.CW1/A, copy of Home Loan agreement Ex.C1, insurance policy Ex.C2, certificate & Tax deduction Ex.C3, Death Certificate Ex.C4, certificate of doctor Ex.C5, repudiation letter dated 24.10.2019 Ex.C6, Chronic disease certificate Ex.C7, Aadhar card of Ram Karan Ex.C8, Aadhar card of sushma Ex.C9, Aadhar card of Himanshu Ex.C10, Aadhar card of Aarti Ex.C11, treatment record of Sushma Ex.C12 to Ex.C15 and closed the evidence on 03.03.2020 by suffering separate statement.

7.             On the other hand, OP no.1 tendered into evidence affidavit of Shweta Pokhriyal Ex.OP1/1, affidavit of Dr.Nilutpal Bora MBBS Ex.OP1/2, prescription slip of Park Hospital Ex.O1/1, repudiation letter dated 23.10.2019 Ex.O2/1 and insurance policy alongwith terms and conditions Ex.O3/1 and closed the evidence on 18.01.2021 by suffering separate statement.

8.             OPs no.2 and 3 tendered into evidence affidavit of Aditya Kochar Assistant Manager Ex.OP1/A, loan agreement Ex.O1, terms and conditions Ex.O2, loan for insurance premium funding Ex.O3, statement of account Ex.O4, statement of outstanding loan amount Ex.O5 to Ex.O7 and closed the evidence on 09.11.2020 by suffering separate statement.

9.             We have heard the learned counsel of all the parties and perused the case file carefully and have also gone through the evidence led by the parties.

 10.          Learned counsel for the complainant argued that Ram Karan (since deceased), husband of complainant No.1, had purchased a house in Shastri Nagar, Gharaunda and a loan was availed for the same from OP No.2. He has obtained an insurance policy from the OP No.1 whereby he as well as aforesaid property were insured by the OP No.1. In the said policy, it was assured that in case of any mis-happening regarding life of the insured due to illness, accident, etc. and due to damage to the property due to fire, theft act in that eventuality, OP No.1 will pay 100 % benefit to the insured/nominee/LRs. On 25.09.2019, the husband of complainant No.1 suddenly got heart-attack and taken to Park Hospital, Panipat, where doctor declared him brought dead due to heart-attack. The complainants informed the OPs regarding death of Ram Karan and requested to give claim benefits to them but OP No.1 wrongly repudiated genuine claim of the complainants. The said property as well as life of Ram Karan was insured by OP No.1, therefore, after the death of Ram Karan, it is OP no.1 who is liable to pay the remaining loan amount to the bank. Hence, the complainants prayed for allowing the complaint. Learned counsel for complainant placed reliance on HDFC Ergo General Insurance Company Limited Versus Jasmine Ebenezer Arthur & another W.A. No.4035 of 2019 and Jasmine Ebenezer Arthur Versus HDFC Ergo General Ins. Company W.P. No.22234 of 2016.

11.           Per-contra, learned counsel for OP No.1 argued that Ram Karan had expired due to cardiac arrest and not due to heart-attack and as per terms and conditions of the policy, if a person died due to cardiac arrest, he is not liable for any claim. This fact has been mentioned by the doctor of the Park Hospital in Ex.D1/1. He further argued that medically there is a difference between cardiac arrest and heart-attack and is not considered as same. Cardiac Arrest occurs when the heart malfunctions and stops beating unexpectedly. Cardiac arrest is an Electrical problem. Cardiac arrest is triggered by an electrical malfunction in the heart that causes an irregular heartbeat (arrhythmia). With its pumping action disrupted, the heart cannot pump blood to the brain, lungs and other organs and on the other hand, a heart attack occurs when blood flow to the heart is blocked. Heart attack is a “circulation” problem. A blocked artery prevents oxygen-rich blood from reaching a section of the heart. If the blocked artery is not reopened quickly, the part of the heart normally nourished by that artery begins to die. He further argued that the policy in question is Home Credit Assure Policy which provides coverage’s against ailment as suffered by the insured due to specified Major Medical Illness as mentioned under the list of Major Medical Illness and lastly prayed for dismissal of complaint with heavy costs.

12.           Learned counsel for OPs No.2 & 3 argued that Ram Karan availed a house loan amounting to Rs.12,00,000/- in his name and complainant No.1 from OPs No.2 & 3 and agreed to repay as per the terms and conditions of the agreement. Since, the loan was disbursed by OPs No.2 & 3 to the complainant No.1 as well as Ram Karan, therefore, as per the terms and conditions of the agreement, the OPs No.2 & 3 are liable for recovering the aforesaid amount, it is  be paid by the complainants or insurance company. As per outstanding loan account receipt dated 28.02.2020, (Ex.O5), Rs.12,26,361/- is still pending against the complainants. OPs No.2 & 3 have every right to recover the said amount as per the terms and conditions of the loan agreement. 

13.           Admittedly, Ram Karan (since deceased) was obtained home loan from the OPs No.2 & 3 and also obtained an insurance policy from OP No.1 whereby OP No.1 insured the life of Ram Karan as well as loan property. During the subsistence of the insurance policy, Ram Karan was died and thereby, complainant (Sushma Rani) lodged claim to the OP No.1 which was repudiated by the OP No.1 on the ground that the illness due to which Ram Karan was died, does not cover under the list of Major Medical Illness mentioned in the insurance policy.

14.           Ram Karan (since deceased) and Smt.Sushma Devi was obtained home loan from Ops No.2 & 3 vide loan agreement Ex.C1. Loan property and life of Ram Karan, insured under the Home Credit Assure Package Insurance Ex.O3/1(Ex.C2).It is an admitted fact that Ram Karan was died during the subsistence of the policy. Death of Ram Karan proved from the certificate Ex.C5 issued by the doctor of Park Hospital. 

15.           While repudiating the claim of the complainants vide repudiation letter Ex.C6, the OP submitted that the insured died on 25.09.2019 due to cardiac arrest, chest pain and as the said ailment are not covered under Critical illness enlisted in Section 3 Major medical illness and procedure, hence, this claim is being repudiated. 

 16.          As per outstanding loan amount sheet Ex.O5, an amount of Rs.12,26,361/- is due towards the complainants’ property. 

17.           The plea taken by OP No.1 that cardiac arrest due to which Ram Karan was died does not cover under the terms and conditions of the insurance policy. As per version of the complainants, the deceased when suddenly fell ill was taken to Park Hospital and when he reached in the hospital, the doctor declared the patient brought dead due to heart-attack. 

 18.          There is no post-mortem report of the treating doctor whereby it can be seen that the concerned doctor after examining Ram Karan declared dead due to heart-attack, rather he stated that deceased was “brought dead due to heart attack”. Since, the deceased had already been dead before reaching to the hospital, then without examining the patient, how can a doctor come to the conclusion that the patient was died due to cardiac arrest 

19.           It is pertinent to mention here that during the pendency of the present complaint, complainant No.1 Sushma Rani was also died and the legal heirs of complainant No.1 are already on the file. 

 20.          The moot questions for consideration before us are as under:-

1. Whether the patient died due to heart-attack or cardiac arrest?
2. If the patient died due to cardiac arrest, then it covers under list of Major Medical clause as mentioned under the list of Major Medical Illness.

21.           When the patient was brought in the hospital, he was declared dead. No Post-mortem of the dead body of person was conducted.  Doctor who has checked the patient came to conclusion that patient was died due to cardiac arrest. This opinion was given by the doctor on furnishing the information by the attendant of the patient. It is not disputed that husband of complainant died only due to heart attack or cardiac arrest. Thus, this question goes unproved. 

22.           With regard to second question is concerned, it is submitted that in case titled as “Jasmine Ebenezer Arthur Versus HDFC Ergo General and others WP No.22234 of 2016 decided by Single Bench” the petitioner and her husband applied for Home Loan with second respondent for the property and also obtained insurance coverage. On the fateful day, petitioner’s husband was proceeding to his office by driving the car, he suffered massive cardiac arrest and rushed to hospital, where he died. The claim of the petitioner was repudiated on the ground that cause of death was not covered under ‘Major Medical Illness’. It was further held therein that the petitioner made her claim after her husband’s death under the head “major medical illness” with all relevant documents. However, it was intimated to her that the only missing document was “cause of Ventricular Fibrillation and Cardiac Arrest from treating doctor”. The petitioner again obtained a report from Mafaq Hospital, as per which the cause of death was “acute coronary artery syndrome”. As per Section 3 of the Policy in question the medical event of “myocardial Infarctioin” was covered under the polity. Though, the cardiac arrest suffered by the husband of the petitioner falls under the abovesaid medical event, the first and second respondents are denying the rightful claim of the insurance cover.

23.           It is further held in the aforesaid judgment that law seems to be clear in constituting a balance between the insuring party and insured, in reality, there is no equality between the two as insurer is the richest corporation and the individual is an ordinary individual. In fact, in many cases, the individual has no legal knowledge about the ambiguous language used in the company’s policy with an intention to waive them from the liability to pay the injured on happening of an agreed event. Many a times the companies willfully neglect reimbursing the insured, who instead of getting their amount from the company have to pay the courts for getting their rights enforced. There should be more transparency and accuracy of the facts before the contract comes into force. This reduces chances of confusion later, when the claim is made under the insurance policy. The malpractice and arbitrary use of power by the insurance companies must be restrained by incorporating provisions to reduce the chances of ambiguity at a later date. Or else, the insurer would continue to take advantage of the insured by falsely repudiating the claims made by the insured. 

24.           Learned counsel for complainant also placed reliance on the case titled as “HDFC Ergo General Versus Jasmine Ebenezer Arthur and others, WA No.4035 of 2019, decided by Double Bench”, wherein the abovesaid decision was upheld by the double bench and held that an opinion was obtained from Dr.M.Nandakumaram, M.D. D.M. (Cardio), Professor of Cardiology (C-VI Unit), Madras Medical College and Rajiv Gandhi Government General Hospital, Chennai, on 07.03.2019. The opinion of the doctor reads as under:- 

                “the cause of death in Myo-cardial infarction can be due to Ventricular Fibrillation and if the patient had died of Acute Coronary Syndrome and Ventricular Fibrillation, the cause of death can be considered due to Myo-cardial infarction.”

                It was further held that there was no objection to the expert opinion/report given by Dr.M.Nandakumaram, this court does not intend to interfere with the findings of the learned Single Judge and the appeal of the appellant is liable to be dismissed. In the result, the appeal is dismissed. No costs. 

25.           In view the ratio of the above judgments, if the patient/husband of complainant No.1 died due to cardiac arrest, then in that eventuality also complainants are entitled for the claim from OP no.1 as the Caradic arrest is also covered under Section 3 of the terms and conditions of the policy in the event of “Myocardial Infarction”.  

26.           Keeping in view the above discussion, in both the cases whether the husband of complainant No.1 was died due to heart-attack or due to cardiac arrest, are covered as per the terms and conditions of the insurance policy. Hence, the act of OP No.1 while repudiating the claim of complainants amounts to deficiency in service and unfair trade practice. 

27.           The deceased was obtained the insurance of 100% of the loan amount. Hence, it is OP No.1 who will pay the remaining loan amount to the OPs No.2 & 3. OPs No.2 & 3  i.e. HDFC Bank Ltd. Sector 12 Urban Estate, Karnal and Housing Development Finance Corporation Limited, SCO 153-155, Sector 8C, Madhya Marg, Chandigarh  will return the original sale deed and other documents to the complainants alongwith No Dues Certificate after clearance of loan by the OP No.1. 

28.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.1 to pay the remaining loan amount to OPs no.2 and 3 and OPs no.2 and 3 are directed to return the original sale deed and other documents alongwith NOC after clearance of loan by OP no.1 to the complainants. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated the order accordingly, and the file be consigned to the record room, after due compliance.

Announced

Dated: 09.02.2021                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

       

         (Vineet Kaushik)               (Dr. Rekha Chaudhary)

            Member                              Member