Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 583.
Instituted on : 24.10.2011.
Decided on : 05.05.2016.
Sudesh W/o Late Sh. Tejbir Singh s/o Sh. Nafe Singh r/o H.No. 273 Subhash Nagar Rohtak.
………..Complainant.
Vs.
- HDFC ERGO General Insurance Company Limited 6th Floor Leela Business Park, Andheri Kurla Road, Andheri(East) Munbai 4000059 through Manager.
- HDFC ERGO General Insurance company Limited, First Floor, HDFC Bank, Near D Park, Model Town, through Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. Lalit Kaushik, Advocate for the complainant.
Sh. Gulshan Chawla, Advocate for the opposite party No.1.
Opposite party no.2 given up.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that husband of complainant has been insured with opposite party no.1 and 2 vide policy no.40830622 w.e.f. 23.02.2011 to 22.02.2012 and the complainant is the beneficiary of the above said policy. It is averred that unfortunately Sh. Tejbir Singh had expired on 26.03.2011 due to severe episode of Massive M.I.(Ant Wall). He has been rushed to Sonia Hopsital Nangloi Delhi where he had been declared dead. It is averred the he has no previous history of any such type of any disease and he died all of sudden and this was accidental death. It is averred that after his death complainant lodged the claim with the opposite party and also sent representation regarding settlement of the claim on 02.05.2011 and after that she has sent legal notice dated 03.08.2011 to the opposite party but vide reply to the legal notice opposite party informed that the claim has been repudiated by the opposite party vide its letter dated 02.09.2011. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is averred that the opposite party may kindly be directed to pay the amount of Rs.500000/- as benefit as per policy alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, opposite party no.1 appeared and filed its written reply submitting therein that the contents regarding Sh. Tejbir Singh being expired on 26.03.2011 due to massive MI and taking of Sh. Tejbir to Sonia Hospital is denied for want of knowledge and proof. It is further submitted that on telephonic intimation by the complainant, interaction I.D. No.233892 was created by the company and it was clearly informed to the complainant that the cause of loss as intimated is not covered in the policy. That the answering opposite party taking the legal notice as written intimation of the claim for the death of Mr. Tejbir Singh, the answering opposite party repudiated the claim, without going into the facts of the case, as prima facie the claim of the complainant does not fall within the four corners of terms and conditions of the policy. It is averred that as per section 1 Sub (2) of Specific Exclusions of the policy, no payment will be made by the company in any claim directly or indirectly caused by, based on arising out of or however attributable in following “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 the insured for whom coverage has been renewed by the named insured. Without break for subsequent years”. It is averred that the claim of the complainant has been repudiated as per the policy terms and conditions after due consideration. It is averred that complainant is not entitled to the relief prayed for. Opposite party prayed for dismissal of the complaint with cost. However opposite party no.2 was given up by ld. counsel for the complainant vide statement dated 04.05.2012.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C13 and has closed his evidence. Ld. counsel for the opposite party No.1 in his evidence has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R4 and closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case very carefully.
6. In the present case it is not disputed that the husband of the complainant was insured with the opposite party vide policy no. 40830622 w.e.f. 23.02.2011 to 22.02.2012. It is also not disputed that as per certificate Ex.C1, the husband of the complainant was admitted in the Sonia Hospital on account of chest pain on 21.03.2011 and was declared dead on the same day. After the death of her husband, complainant filed the claim with the opposite party and served a legal notice Ex.C6 and in reply to the same, opposite party vide its letter Ex.C12 has repudiated the claim on the ground that :Any critical illness diagnosed within the first 90 days of the date of commencement of the policy is excluded under section 1 sub(2) of the policy. In order to prove its contention opposite party has placed on record terms and conditions of the policy vide document Ex.R2.
7. After going through the file and hearing the parties it is observed that in the present case no policy was supplied to the complainant. Opposite party has not placed on record any document to prove that the alleged terms and conditions were part of the policy Ex.C13 and were delivered to the complainant. Hence its terms and conditions cannot be relied upon. In this regard we have placed reliance upon 2013(1)CLT 589 titled as New India Asurance Co. Ltd. Vs. Pabbati Sridevi & Others whereby Hon’ble National Commission has held that: “Terms and conditions therein, not communicated to the insured-Whether can be used by Insurance Company-No-Held that the terms and conditions were never issued to the insured-Policy is in the nature of standard, printed documents. There is nothing to show that its contents were part of the policy document issued to the insured-Terms and conditions in insurance policy cannot be rely upon by insurance company”, as per 2015(1)CLT591 titled as Star Health and Allied Vs. Asha & Others, whereby it is held that: “Insurance policy-Exclusion clause-Not explained to insured when cover not was issued-Insurance company cannot derive any benefit from exclusion clause” and as per 2009(3)CLT 184 titled ICICI Lombard General Insurance Co. Ltd. Vs. Gurmeet and another, Hon’ble Punjab State Commission, Chandigarh has held that: “No evidence to prove if the document was either signed by the complainant-insured or if it was an enclosure of the insurance policy or if it was duly communicated to respondent no.1-The insurance Company cannot avail the benefits of these terms and conditions contained in the document”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim amount as per policy.
8. In view of the facts and circumstances of the case, it is directed that opposite party no.1 shall pay the claim amount of Rs.500000/- (Rupees five lacs only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 24.01.2011 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which failing the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
05.05.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
…………………………..
Ved Pal, Member.
