Order by:
Smt.Aparana Kundi, Member.
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that father of the complainant namely late Sh.Karnail Singh applied a business loan for his firm M/s New Daudharey Bodybuilders from opposite party no.3 vide application no.APPL01027504 to the tune of Rs.30,20,000/- and the same was sanctioned vide loan a/c no.LAN No.DRBLMOG00485854 by the said bank on 28.06.2019 and an amount of Rs.30 lac was credited in the account of father of complainant and Rs.20,000/- was retained by Opposite Party No.3 with it as a premium of the policies issued by Opposite Parties no.1 & 2 bearing policy namely Group Safeguard policy no.4148/GSG/175665946/00/000 for the period 15.07.2019 to 14.07.2024 and policy no.4013/H/DCB/175479016/00/000 from 15.07.2019 to 14.07.2024 regarding the insurance of building structure, burglary etc. and the said loan was to be paid back by the complainant and his father in 180 equally monthly installments starting from 04.08.2019 to 04.07.2034 to the tune of Rs.34,801/- p.m. Earlier the father of complainant died and after his death, the complainant is regularly paying the installments and there is no dispute regarding the same. During the policy period of Policy bearing No.4148/GSG/175665946/00/000 period 15.07.2019 to 14.07.2024, father of complainant, namely Sh.Karnail Singh died on 17.09.2020 due to the reason of Cardiac Arrest which was solely occurred due to suffering of Dengue/Malaria, in Nursing Home, Kot Ise Khan, Tehsil Dharamkot, District Moga as per medical record. Thereafter the complainant for himself and on behalf of other class-I legal heirs of deceased Sh. Karnail Singh lodged a claim along with all the original documents and formalities required by Opposite Parties No.1 & 2. The Opposite Parties No.1 & 2 told to complainant that along with him, his mother Smt. Rajpal Kaur and his sister Ratinder Kaur are the legal heirs of deceased Sh.Karnail Singh Gill, it is required to submit a consent letter on behalf of his mother and sister to the effect that complainant can process the claim of deceased Karnail Singh. The complainant also submitted the consent letter dated 31.12.2020 duly executed and signed by his mother and sister with the opposite parties no.1 and 2. But even after completing all formalities as required by opposite parties no.1 and 2, the opposite parties no.1 and 2 rejected the claim of complainant on flimsy grounds by issuing a letter dated 16.02.2021 by falsely mentioning that father of complainant has given an untrue and incorrect statement in the proposal form and the complainant has given an incorrect information in claim form, only to the get the benefit of policy and also mentioned that on scrutiny and verification of the claim documents it is found that the complainant has misrepresented the hospital admission, which is totally a fake ground only to save their skin from giving the claim amount. As the claim was lodged by the complainant after getting due consent of the other legal heirs of deceased Karnail Singh on the asking of Opposite Parties, so the present complaint is also being filed by complainant for himself and on behalf of other legal heirs of on the basis of said consent letter. The complainant visited a number of times to the Branch Office of opposite party no.2 at Ludhiana for settling the claim of policy in question as well as also visited at the branch office of opposite party no.3 i.e. DCB Bank who is the agent of opposite parties no.1 and 2. But to no effect. After receiving the letter dated 16.02.2021 and coming to know about the repudiation his claim by the opposite parties, the complainant issued a legal notice dated 12-10-2021 to them, but the opposite parties did not pay any heed to the requests and legal, genuine demand of complainant and even did not reply to the said legal notice. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay an amount of Rs.10,00,000/- as sum insured with regard to death of his father Karnail Singh.
b) To pay an amount of Rs.5 lacs as compensation on account of mental tension, agony and harassment suffered by the complainant.
c) To pay an amount of Rs.25,000/- as litigation expenses.
d) And any other relief which the Commission deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties no.1 & 2 appeared through counsel and contested the complaint by filing written version taking preliminary objections therein inter alia that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has concealed material facts and documents from this Commission as well as replying opposite parties therefore, the complainant is not entitled to any relief. The complainant has concealed the fact that on further scrutiny and verification of the claim documents, it is understood that complainant has misrepresented the hospital admission. Further he has misrepresented the facts to get the benefit out of insurance. Hence the same falls outside the purview of policy terms and conditions. Multiple discrepancies were found during investigation of the case. It appeared that as if diagnosis of dengue is made for insurance purpose only. No entry of insured was found available in the lab register. Whole of ICP seemed to be made up. Patient was said to be critical during hospitalization but no notes supporting the same were found in records/ ICP. Patient was also treated by BAMS doctor. Since dengue is a notifiable disease but no notification was sent by the hospital to any Govt. Authority. No Post Mortem Report was got done. It was not a routine life insurance policy rather the claim was payable in case of death due to specific diseases. It has been specifically mentioned in part three of policy wording of policy schedule which reads as under:-
1. "Incontestability and duty of Disclosure.
The policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, mis-description or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured person or any one acting on his behalf of obtain any benefit under this policy".
The complainant has failed to submit any material document to substantiate his claim. Hence no claim is payable and the same has been repudiated vide letter dated 16.02.2021. The Terms & conditions of insurance policy are binding between the insurer and insured as per 2009 (4) CLT 313 SC. Terms & conditions of policy are binding & govern the relation between insurer and insured. The present complaint is bad for non-joinder of necessary parties as the complainant has not joined all the legal heirs of deceased Surinder Singh Gill, who are otherwise necessary parties for the just and proper decision of the present complaint. The complainant is not the consumer of the opposite parties and complaint is liable to dismissed on this ground alone. The complainant has no locus standi or cause of action to file the present complaint against opposite parties. The complaint is not maintainable in the present form and is liable to be dismissed. On merits, it is submitted that on the scrutiny and verification of the claim document by the replying opposite parties, it was understood that complainant has misrepresented the Hospital Admission. Further he has misrepresented the facts to get the benefit out of insurance. Hence the same falls outside the purview of policy terms and conditions, hence the claim was rightly repudiated as per terms and conditions of the policy. Remaining facts mentioned in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Upon service of notice, none has come present on behalf of opposite party no.3, hence opposite party no.3 was proceeded against exparte.
4. In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C19 and affidavit of Dr.Raghavdeep Kamboj, M.B.B.S, Harbans Nursing Home as Ex.C20.
5. To rebut the evidence of complainant, Opposite Parties no.1 & 2 tendered in evidence affidavit of Sh.Rohan Mishra, Manager Legal ICICI Lombard GIC Ltd. Ex.OPs1 & 2/1 alongwith copies of documents Ex.OPs1 & 2/2 to Ex.OPs1 & 2/7.
6. During the course of arguments, ld. counsel for both the parties have mainly reiterated the same facts as narrated in the complaint as well as written reply. The case of the complainant is that father of the complainant namely late Sh.Karnail Singh applied a business loan for his firm M/s New Daudharey Bodybuilders from opposite party no.3 to the tune of Rs.30,20,000/- and an amount of Rs.30 lac was credited in the account of father of complainant and Rs.20,000/- was retained by Opposite Party No.3 with it as a premium of the policies issued by Opposite Parties no.1 & 2 bearing policy namely Group Safeguard policy no.4148/GSG/175665946/00/000 for the period 15.07.2019 to 14.07.2024 and policy no.4013/H/DCB/175479016/00/000 from 15.07.2019 to 14.07.2024 regarding the insurance of building structure, burglary etc. During the policy period of Policy bearing No.4148/GSG/175665946/00/000 from 15.07.2019 to 14.07.2024, father of complainant, namely Sh.Karnail Singh died on 17.09.2020 due to the reason of Cardiac Arrest which was solely occurred due to suffering of Dengue/Malaria, as per medical record of Nursing Home, Kot Ise Khan, Tehsil Dharamkot, District Moga. Thereafter the complainant being class-I legal heir of deceased Sh. Karnail Singh and on behalf of other legal heirs lodged the claim with opposite parties along with all the original documents and other formalities required by Opposite Parties No.1 & 2. Moreover, the complainant submitted the consent letter on behalf of his mother and sister to the effect that complainant can process the Karnail Singh. But even after completing all formalities as required by opposite parties no.1 and 2, the opposite parties no.1 and 2 rejected the claim of complainant on flimsy grounds, vide letter dated 16.02.2021. The complainant visited a number of times to the Opposite Parties for settling the claim of policy in question, but to no effect.
7. Ld. counsel for the Opposite Parties No.1 & 2 has filed written arguments stating that Multiple discrepancies were found during investigation of the case. It appeared that as if diagnosis of dengue is made for insurance purpose only. No entry of insured was found available in the lab register. Whole of ICP seemed to be made up. Patient was said to be critical during hospitalization but no notes supporting the same were found in records/ ICP. Patient was also treated by BAMS doctor. Since dengue is a notifiable disease but no notification was sent by the hospital to any Govt. Authority. No Post Mortem Report was got done. It was not a routine life insurance policy rather the claim was payable in case of death due to specific diseases. It has been specifically mentioned in part three of policy wording of policy schedule which reads as under:-
1. "Incontestability and duty of Disclosure.
The policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, mis-description or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured person or any one acting on his behalf of obtain any benefit under this policy".
Ld. counsel for the opposite parties further stated in written arguments that the complainant has failed to submit any material document to substantiate his claim. Hence no claim is payable and the same has been repudiated vide letter dated 16.02.2021.
8. We have perused the rival contentions of ld. counsel for both the parties and have also perused the record. The issuance of Group Safeguard policy no.4148/GSG/175665946/00/000 for the period 15.07.2019 to 14.07.2024 by opposite parties to complainant not disputed. The death of the father of complainant deceased policy holder also not disputed. The only dispute is between the parties is that the opposite parties rejected the claim of the complainant on the ground that the complainant has misrepresented the hospital admission. They also taken the objections that no entry of insured was found available in the lab register. Whole of ICP seemed to be made up. Patient was said to be critical during hospitalization but no notes supporting the same were found in records/ ICP. Patient was also treated by BAMS doctor. Since dengue is a notifiable disease but no notification was sent by the hospital to any Govt. Authority. No Post Mortem Report was got done. But we do not agree with the aforesaid contentions of ld. counsel for the opposite parties, as in this regard the complainant has placed on record affidavit of Dr.Raghavdeep Kamboj, M.B.B.S, Harbans Nursing Home, Kot-Ise-Khan, Tehsil Dharamkot, District Moga as Ex.C20 in which it is clearly stated that “on dated 14.09.2020 Sh.Karnail Singh son of Sh.Surjeet Singh, resident of H.No.628, Godhewala Moga was brought to Harbans Nursing Home, Kot-Ise-Khan, District Moga by his son Sh.Surinder Singh Gill as the patient Karnail Singh was suffering from high grade fever on and off from few days.” It is further stated in the affidavit “The patient remained admitted in the hospital from 14.09.2020 to 17.09.2020 and during this period the deponent given proper treatment to the patient as per medical requirements. Ultimately on 17.09.2020 succumb to his illness i.e. Dengu/Malaria patient Karnail Singh suffered sudden Cardiac Arrest due to which died on that day. Cardiac Arrest caused to patient due to the said illness.”
9. Further the perusal of policy rejection letter dated 16.02.2021 Ex.OPs1 & 2/3 shows that Opposite Parties no.1 & 2 rejected the claim of the complainant giving following remarks:-
“On further Scrutiny and verification of the claim documents, it is understood that you have misrepresented the Hospital Admission. Further you have misrepresented the facts to get the benefit out of insurance. Hence the same falls outside the purview of policy terms and conditions.”
In the aforesaid letter Opposite Parties no.1 & 2 has taken the plea that complainant has misrepresented the facts and as per the terms and conditions of the policy complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
10. In such a situation the repudiation made by Opposite Parties-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. In view of the above discussion, we hold that the Opposite Parties No.1 & 2-Insurance Company have wrongly and illegally rejected the claim of the complainant. Moreover, there is dispute between the complainant and opposite parties no.1 & 2/Insurance Company and there is no dispute between the complainant and opposite party no.3-DCB Bank. Further perusal of Risk Assumption Letter Ex.C4 shows that sum insured under the Malaria related Death Benefit is Rs.10,00,000/- and benefit amount is 100% of sum insured and we allow the same.
12. In view of the aforesaid facts and circumstances of the case, we dismiss the present complaint against opposite party no.3-DCB Bank and partly allow the complaint of the Complainant against opposite parties no.1 & 2-Insurance Company and direct Opposite Parties-Insurance Company to pay Rs.10,00,000/- (Ten lacs) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 01.12.2021 till its actual realization. The compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Commission.
