BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.326 of 2021
Date of Instt. 22.09.2021
Date of Decision: 21.02.2023
Smt. Barkha Gill W/o Late Sh.Jatinder Kumar alias Jatinder Gill, deceased, now represented through
i. Kanchan Ghai W/o Saurabh Ghai D/o Sh. Jatinder Kumar alias Jatinder Gill R/o H. No.52, Ambedkar Nagar, Basti Nau, Jalandhar (Daughter).
ii. Shivani Gill D/o Sh.Jatinder Kumar alias Jatinder Gill R/o H.No.9-A, GNDU Road, Ladhewali Near Gurudwara Singh Sabha, Randhawa Enclave, Jalandhar (Daughter)
...........Complainant
Versus
1. M/s HDFC Life Insurance Co. Ltd. through its Managing Director, 11th Floor, Lodha Excelus, Appolo Mills Compound, NM Joshi Marg, Mahalaxmi, Mumbai-400011.
2. M/s HDFC Limited through its Branch Manager, 5, Link Road, Near Guru Ravi Dass Chowk, Jalandhar-144003.
3. M/s HDFC Limited through its authorized official Registered Office; Ramon House, HT Parekh Marg, 169, Backbay Reclamation, Church Gate, Mumbai, Maharashtra-400020.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. A. K. Arora, Adv. Counsel for the Complainant.
Sh. A. K. Gandhi, Adv. Counsel for OP No.1.
Sh. Akhil Chopra, Adv. Counsel for OPs No.2 & 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the husband of complainant namely Jatinder Kumar alias Jatinder Gill S/o Sh. Som Parkash, since deceased, was working as Sub Inspector with Punjab Police, was Posted under SSP Rural Jalandhar and was absolutely hale and hearty. Sh. Jatinder Kumar deceased has done his duty up to 1.9.2020 with Punjab Police and has taken medical leave for the 1st time from 2.9.2020 to 6.10.2020 i.e. up to date of his death due to Covid. The complainant is the widow and nominee of her late husband namely Jatinder Kumar alias Jatinder Gill, who has taken insurance policy in his name bearing certificate no.PP00028900QLT00, Master Policy no.PP000289 from OP No.1, with date of commencement 31.05.2019 for a period of 10 Years, covering total risk of Rs.21,55,618/- i.e. total amount of housing loan and loan for the payment of insurance premium availed by Late Sh.Jatinder Gill, from the branch office of OP No.2. The aforesaid insurance of Late Sh. Jatinder Gill was done by OP No.2 at Jalandhar in the branch office of OP No.2 at Link Road, Jalandhar, who is the agent of OP No.1. OP No. 3 is the Head office of OP No. 2. In the said policy of insurance issued to Late Sh.Jatinder Gill, OP No.3, which is the registered office of OP No.2 has been made nominee being the financier and Mrs. Barkha Gill being the wife of Late Sh. Jatinder Gill i.e. complainant. As per the terms & conditions of the said policy of insurance, the sum assured is payable on the death of the insured i.e. entire loan amount covered under the aforesaid policy of insurance cease to payable by the deceased and was to be payable by OP No.2. A sum of Rs.19,87,632/- in the home loan account and Rs.1,50,066/- in the insurance premium funding account as on 02.07.2021 is outstanding to be payable to OP No.2. Late Sh. Jatinder Gill S/o Sh. Som Parkash insured died on 06.10.2020 at Shriman Super Speciality Hospital, Jalandhar due to Covid -19. After death of Sh. Jatinder Gill alias Jatinder Kumar, complainant lodged a claim with OP No.1 for the payment of amount of Rs.21,55,618/- towards death benefits of Sh. Jatinder Gill alias Jatinder Kumar for adjustment of the loan amount outstanding in the loan accounts of Late Sh. Jatinder Gill with OPs No.2 & 3. The OP No.1 has declined the claim of the complainant vide letter dated 30.03 2021 on the ground that the deceased has not provided vital information at the time of applying of policy and the husband of complainant i.e. Late Sh. Jatinder Gill Assured was suffering from Liver Disease prior to the issuance of policy. In the said letter it has been mentioned that the husband of complainant has wrongly answered medical questionnaire in negative detailed in the said letter dated 30.03.2021. In fact complainant has not given any wrong answer to the medical questionnaire detailed in the letter dated 30.03.2021 since the husband of the complainant namely Late Sh Jatinder Gill was hale and hearty and was not suffering from any disease detailed in the medical questionnaire and has never taken any medication nor any doctor has ever attended the husband of complainant for any other conditions detailed in the medical questionnaire prior to issuance of policy of insurance, thus the answers to the medical questionnaire have rightly been given in negative by Late Sh. Jatinder Gill. The husband of complainant was not suffering from any disease prior to the issuance of policy of insurance and was regularly attending his duty as Sub Inspector with the Punjab Police. Had the husband of complainant was suffering from any disease, he might not be able to attend his regular duty as Sub Inspector with the Punjab Police. It has been wrongly alleged in the letter dated 30.03.2021 that Late Sh Jatinder Gill has given wrong answers to the medical questionnaire and was suffering from Liver Disease prior to issuance of policy of insurance in question. The rightful claim of complainant has been wrongly declined by opposite party no.1 on illegal and arbitrarily grounds, which have no justification. It is not out of place to mention here that the husband of the 1complainant has minor fever and has got done full body test from Sardana Lab on 18.07.2020 and has taken treatment for Typhoid from Guru Nanak Mission Hospital on 20.07.2021. Prior to 18.07.2020 the husband of the complainant has not got conducted any test nor has taken any treatment. It appears that deceased suffered Cirrhosis of lever due to typhoid and was declared Covid Positive thereafter and died in the course of treatment at Shriman Hospital. Wrong denial of the claim of complainant qua the payment of outstanding amount in the loan accounts of Late Sh. Jatinder Gill is a deficiency in service and OPs No.1 to 3 in conspiracy and connivance with each other are indulging in unfair trade practices. The complainant is under constant stress, strain & tension and has suffered mental agony at the hands of OPs No.1 to 3 and a legal notice dated 16.07.2021 was served upon the opposite parties to make payment of the rightful claim of the complainant, which has wrongly been rejected by OP No. 1. Reply to the notice dated 26.07.2021 was received from OP No. 3, who has denied his liability to pay the claim of the complainant and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to make payment of Rs.21,55,618/- being the insured amount under the policy of insurance alongwith interest @ 18% per annum from the date of lodging of claim till the date of payment for the liquidation of the loan. Further, OPs be directed to pay special damages of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is false, vexatious and has been filed with a malafide intention to harass the OP No.1 by misusing the process of law and to avail undue advantages. It is an attempt to waste the precious time of this Commission as no cause of action has been arose against the answering OPs and in favour of the complainant, hence this complaint is liable to be dismissed. It is further averred that the complaint is not maintainable against the OPs and the same is liable to be dismissed. The OP No.1 has rightly repudiated the claim of Late Jatinder Gill vide Letter Dated 30-03-2021 as the present case is a clear cut case of concealment of material facts and misrepresentation. As per the investigation the deceased Jatinder Gill was suffering from Liver Disease and was chronic Smoker prior to the inception of the insurance policy in question and the same was not disclosed at the time of the execution of the insurance contact by the deceased. So the present case is a clear cut case of concealment of material facts and the violation of the terms and conditions of the insurance policy in question. In the present case the deceased was suffering from the Liver Disease at the time of the execution of insurance contract in question and the same was concealed by the deceased from the answering OPs. So the present complaint is liable to be dismissed for suppression of the material facts from the answering OP as well as in light of the violations of the terms and condition of the insurance policy in question. It is further averred that the complainant has not come before the Commission with clean hands. It was within the knowledge of the deceased that he was suffering from Liver disease and was chronic Smoker at the time of the execution of the insurance contact, but he concealed the same from the answering OPs at the time of the execution of the insurance Contract in question. So the legal heir's of the deceased are not entitled for any claim from the answering OP. Thus, the present complaint is liable to be dismissed forthwith on the grounds of being malafide, baseless and lacking in a bonafide cause of action. The complainant is estopped by her own acts and conducts from filing the present complaint. It is within the knowledge of the complainant that the deceased was suffering from Liver Disease and was Chronic Smoker, but the same was not disclosed at the time of the execution of the insurance contact by the deceased insured. So, the present complaint is liable to be dismissed. On merits, the factum with regard to lodging the claim by the complainant is admitted and it is also admitted that the claim of the complainant was repudiated vide letter dated 30.03.2021, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OPs No.2 & 3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OPs, hence the same is liable to be dismissed. It is further averred that in the instant complaint, the grievance of the complainant is directed against OP No.1 i.e. the insurance company who has allegedly repudiated claim of the complainant. The answering OPs have been wrongly impleaded as OPs in the present complaint, hence the complaint is liable to be dismissed for mis-joinder of OPs No.2 & 3. The complainant has filed the present complaint against the answering OPs with the sole & malafide objective of not repaying the amount due & outstanding in the loan account. The OPs No.2 & 3 i.e. HDFC Limited is an independent, distinct & separate legal entity & body, having no link, control & concern over the affairs and business operations of O.P no.1 i.e. HDFC Life Insurance Co. Ltd. The OPs No.2 & 3 are engaged in the business of providing housing Moans. It is submitted that the husband of the complainant has availed housing loan from OPs No.2 & 3 which is repayable in EMIS, as per the terms and conditions of the sanction and loan agreement. The husband of the complainant has also availed financial assistance from the answering OPs in respect to the amount of premium of insurance policy. The right of the answering opposite party to recover the loan amount as per the agreed terms between the parties, is independent of any other agreement entered into by the complainant and the OP No.1. It is again reiterated that the OPs No.2 & 3 i.e. HDFC Limited is an independent & separate legal entity & body, having no link, control & concern over the affairs and business operations of OP No.1 i.e. HDFC Life Insurance Co. Ltd. The answering OPs have no link or concern with the alleged repudiation/denial of insurance claim by the OP No.1. If the complainant is aggrieved with regard to the alleged repudiation of insurance claim, then she can approach the OP No.1. The answering OPss have no privity of contract of insurance between the complainant and OP No.1. It is submitted that the answering OPs have simply granted the loan facility to the husband of the complainant and he has purchased the insurance policy out of his own free will and as per his convenience. The answering OPs has nothing to do with the said policy, being separate legal entity and having no link, concern and control over the business affairs of the OP No.1. On merits, the factum with regard to purchase of insurance policy by the complainant is admitted and it is also admitted that the husband of the complainant has availed housing loan from OPs No.2 & 3, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
7. The complainant has proved on record that Sh. Jatinder Kumar deceased was the employee of the Punjab Police and the certificate of SSP, Punjab Police has been proved by the complainant Ex.C-1. The complainant has also proved on record that the complainant took a housing loan and also purchased master insurance policy from OP No.1. The date of commencement of the policy was 31.05.2019 and that was for a period of 10 years i.e. upto 31.05.2029. The premium was also paid and loan for payment of insurance premium was also availed by the complainant. The complainant has proved on record the insurance policy Ex.C-2/OP1/4. The complainant has alleged that the deceased Jatinder Kumar died on 06.10.2020 due to Corona. The death summary has been proved by the complainant as Ex.C-5 and death certificate has been proved as Ex.C-6. The complainant has alleged that on 02.07.2021 a sum of Rs.19,87,632/- was due in the home loan account and Rs.1,50,066/- in the insurance premium funding account was due to be payable to the OP No.2. He has proved on record the certificates of the bank Ex.C-3 & Ex.C-4. It has been alleged by the complainant that after the death of Jatinder Kumar, they applied to the OP No.1 for adjustment of the loan amount outstanding in the loan account of deceased Jatinder Kumar with OPs No.2 & 3, but the OP No.1 declined the claim of the complainant vide Ex.C-7 on the ground that the deceased has not provided vital information at the time of applying for policy and he has concealed the material fact of liver disease at the time of taking the insurance policy. He had given wrong answers to the questions put by the OP No.1, therefore he is not entitled to any claim. This letter Ex.C-7 has been challenged by the complainant alleging that the deceased Jatinder Kumar never remained ill nor had taken any medical leave from the department which has been proved vide Ex.C-1. He has also proved on record the test reports got conducted from Sardana Lab, mentioning therein that his reports were normal and the slip issued by Guru Nanak Mission Hospital Ex.C-8 to Ex.C-14. The legal notice was also sent. The complainant has alleged that the repudiation letter be set-aside and the home loan amount be adjusted.
8. The contention of the Ld. Counsel for the OP is that the claim was rightly repudiated as the complainant/deceased Jatinder Kumar had concealed the material facts from the Commission. He has not disclosed that he was suffering from liver disease i.e. Cirrhosis of the liver. It has also not been disclosed by him that he was a chronic smoker prior to the inception of insurance policy. Even the doctor has declared him alcoholic as per the certificate given by him. He has relied upon the documents claim form Ex.OP1/1, the questionnaire in the form regarding death claim filled by the deceased Jatinder Kumar Ex.OP1/2, the investigation report Ex.OP1/3, discharge summary of Sikka Hospital Ex.OP1/5, which is consisting the certificate given by the doctor and he has also proved the prescription given by Sikka Hospital, Patient record of Sikka Hospital Ex.OP1/6 and Ex.OP1/7. The medical record of Prime Medical & Heart Centre and other hospitals Ex.OP1/8 to Ex.OP1/11 and X-ray report from Mann Scanning & Diagnostic Centre Ex.OP1/12 and has submitted that in such circumstances, the complainant is not entitled to any relief as there is violation of the conditions of the insurance contract.
9. All the material facts have been admitted and now the point in controversy is as to whether the deceased had concealed the fact of his liver disease and whether he was having liver disease at the time of inception of the insurance policy and has given wrong answers or not. Another point to be considered is that whether the deceased died because of being smoker and alcoholic and are these sufficient causes to deny the claim of the complainant or not?
10. The documents proved on record by the OPs show that all the medical record of Sikka Hospital is from 18.09.2020 to 01.12.2020 as per Ex.OP1/5 and as per the certificate issued by the doctor of Sikka Hospital, the patient Jatinder Kumar was suffering from ALD Cirrhosis of the liver/SOB/COPD. He has issued this certificate on 20.09.2020. Though, in the prescription and the diagnosis he has mentioned that he recommended CT Abdomen and he has mentioned the alcoholic liver, but from this report, it cannot be concluded that alcohol was the only cause of the liver cirrhosis. There is no such report of the doctor from Sikka Hospital to prove this fact. The medical record of the doctor from Sikka Hospital Ex.OP1/7 also shows that the doctor has categorically mentioned and prepared the Covid Patient Chart and has categorically stated that there are symptoms of Covid-19 and cough. Ex.OP1/8 and Ex.OP1/9 also show that there was problem in the lungs and as per Ex.OP1/10, ‘covid-19 severe bilateral pneumonia, septic shock with AKI, Metabolic acidosis, respiratory failure type-1 was the cause of death’. It has nowhere been mentioned that the deceased Jatinder Kumar died because of alcohol or smoking. Though, in Ex.OP1/11, it has been mentioned that he has been diagnosed as chain smoker but again there is no certificate that he has died because of smoking. As per Ex.C-1, he took medical leave from 02.09.2020 to 06.10.2020. All the documents filed by the OPs are after the date 02.09.2020, meaning thereby that no medical record of the deceased Jatinder Kumar has been produced by the OP, prior to 31.05.2019 to show that he had given wrong answers to the questions put by the OPs at the time of inception of insurance policy. In all the documents, it has nowhere been mentioned by the doctor nor any certificate has been given by the doctor that the deceased was suffering from ALD cirrhosis of liver prior to 31.05.2019 i.e. at the time of taking the insurance policy from the OP No.1. As per the record produced by both the parties, the deceased suffered cirrhosis of liver due to typhoid and thereafter, he suffered lungs disease and was declared Covid+ and died in the course of treatment at Shrimann Hospital. The OP has failed to prove that the deceased was suffering from liver disease prior to 31.05.2019 i.e. inception of the policy. The cause of death from the medical documents/record is Covid-19. The investigation reports produced on record by the complainant, nowhere show that there is past history of any ailment of liver to the deceased Jatinder Kumar. As per medical jurisprudence, Alcohol perse is not the only cause of heart disease or liver disease, but may be contributory factor. The OPs have not proved that the liver cirrhosis suffered by the complainant was due to alcohol and smoking. It has not been proved that the deceased was a habitual drunker or the extent of alcohol being taken by the complainant has not been proved which may have caused effect on the liver of the deceased. The amount of consumption of the liquor has not been proved. Even this fact has not been proved that he was a chain smoker as alleged. As per medical jurisprudence, alcohol has diverse effect on the liver as well as on Cardio Vascular System, but the OPs have failed to prove that the consumption of the alcohol by the deceased was so high that it has exclusively effected the liver or heart of the deceased rather it has been proved that the deceased was found Covid+, which has affected his lungs and all his organs. The cause of death of Jatinder Kumar was Covid-19 and this fact has been proved by the complainant. It has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, in Vol.III (2008) CPJ 279, titled as “Life Insurance Corporation of India Vs. Satinder Kaur”, that where the cause of death due to alcohol is not proved, the claim cannot be repudiated. In the present case also, it has not been proved by the OPs that the complainant was ever admitted in the hospital due to drinking of alcohol, therefore it cannot be said that the disease suffered by the complainant was due to alcohol or smoking and accordingly, we are of the opinion that the claim of the complainant has been wrongly and illegally repudiated by the OPs. So, there is a clear cut deficiency in service and unfair trade practice on the part of the OPs. Thus, the repudiation letter is hereby set-aside and further, find that the complainant is entitled for the relief against OP No.1 only as the complainant has not claimed any relief against OPs No.2 & 3.
11. In the light of above detailed discussion, the complaint of the complainant is partly allowed. As per policy insured amount is Rs.21,55,618/- and OP No.1 is directed to pay the balance loan amount due, if any, to the bank directly and remaining amount be given to the complainant. Further, OP No.1 is directed to pay a compensation of Rs.25,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. 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 Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
21.02.2023 Member Member President
