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Advoate Prabhakar Hadadare for the Complainants
Advocate Arti Soman for Opponent No.1 Insurance Co.
M/s. M.V.Kini & Co. Advocates for the Opponent No.2
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 21st April, 2014
This complaint is filed by consumer against the Insurance Company and the ICICI Home Finance Co. Ltd. Brief facts are as follows-
[1] Complainant No.1 is the mother, Complainant No.2 is the widow and Complainant No.3 is the son of the deceased Amol Murlidhar Dalvi, who had obtained housing loan from the Opponent No.2. Opponent No.1 is the Insurance Company who has issued Insurance Policy in favour of the deceased and it was assured that if Amol Murlidhar Dalvi died due to any of the cause referred in the policy, the legal heirs will receive amount of Rs.15,22,065/-. It is the case of Complainants that Amol Murlidhar Dalvi died due to Leptospirosis on 04/06/2010 that include Hepatorenal failure i.e. total liver and kidney failure. That cause was referred in the policy. Hence, Complainants were entitled to receive the amount from the Opponent No.1 which has been shown in the policy. However, the Opponent has repudiated the claim on the ground that Amol Murlidhar Dalvi died due to other disease than which has been shown in the policy. Opponent No.1 has caused deficiency in service by wrongly repudiating the claim. Hence, complainants have filed this complaint for recovery of Rs.15,22,065/-i.e. the policy amount along with interest @ 10% p.a. from 04/06/2010 till 03/06/2011. Complainants have also demanded Rs.1,25,935/- i.e. the amount of premium and compensation on the ground of mental and physical torture and cost of the proceeding.
[2] During the pendency of proceeding the Opponent No.2 has been added as necessary party from whom predecessor of complainant had obtained housing loan.
[3] Opponent Nos. 1 and 2 have resisted the claim by filing separate written version. It is the case of Opponent No.1 that the Insurance Claim was rightly repudiated as deceased Amol Murlidhar Dalvi died due to Leptospirosis and that does not include in the list of diseases which are mentioned in the policy. According to the Opponent, in the policy, the disease named as End Stage Renal Failure is referred which has no concerned with the Leptospirosis i.e. Hepatorenal failure. Hence, Opponent No.1 has prayed for dismissal of the complaint.
[4] Opponent No.2 i.e. ICICI Home Finance Company had contended in the written version that complicated questions are involved in the present proceeding. All the rights in the property are transferred in the name of complainant Nos. 1 to 3. On 13/12/2010 Opponent No.1 had informed to settle the claim. Hence, Complainants are liable to pay the loan which was taken by the predecessor of the complainant. It is further contended that, if the claim is settled, Opponent No.2 is entitled to receive the claim amount. Hence, opponent No.2 has prayed for dismissal of the complaint and in the alternative it has prayed for directing the Opponent No.1 to pay the claim amount to the Opponent No.2.
[5] After scrutinizing the voluminous documentary evidence which has been adduced by both parties, considering the pleadings, evidence of expert and hearing the argument of both counsel, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainants have established that the Opponent No.1 has wrongly repudiated the insurance claim and caused deficiency in service ? | In the affirmative |
2 | What order ? | Complaint is partly allowed |
Reasons-
As to the Point Nos. 1 and 2-
[6] The undisputed facts in the present proceeding are that the predecessor of the complainants had obtained housing finance from the Opponent No.2 and for which the insurance policy was issued by the Opponent No.1. As per the terms and conditions of the insurance policy, the complainants who are the legal heirs of the borrower, are entitled to receive the amount which is shown in the policy if the predecessor of the complainants suffered from the diseases which are referred in the policy. It is the case of the complainants that their predecessor Amol Murlidhar Dalvi died due to Leptospirosis which includes ‘End Stage Renal Failure’, which is referred in the policy. It reveals from the policy documents that, the ‘End Stage Renal Failure Multiple Sclerosis’ has been referred in the policy. It is the case of the Opponent No.1 that End Stage Renal Failure disease is different than Leptospirosis. In order to adjudicate this dispute, both parties have filed the expert opinion. Complainants have examined Dr. Narendra Moreshwar Bhambure who was cross examined by the Opponent No.1. In his cross examination he has denied that Hepatorenal Failure is acute type of kidney failure. He has also denied that in End Stage Renal Failure only kidney fails and Hepatorenal Failure and End Stage Renal Failure are two different phenomenon.
[7] Opponent No.1 has filed affidavit of Dr.Tushar Dighe. According to him he had scrutinized the policy papers as well as indoor papers and case papers of the deceased and he has opined that, End Stage Renal Failure is a Chronic Renal Failure. Hepato Renal Failure and End Stage Renal Failure are two different phenomenon. Dr. Dighe is not available for cross examination. It has come in the evidence of both experts that that Leptospirosis includes failure of kidney as well as liver. As per the terms and conditions which are referred in the policy, disease End Stage Renal Failure is referred. In both kinds of kidney diseases i.e. acute as well as chronic there is renal failure. It is not in dispute that the Leptospirosis includes Hepato Renal Failure. Amol Dalvi was treated in ICU in Rubi Clinic for 17 days prior to his death. In this circumstances, legitimate inference can be drawn that, there was gradual failure of kidney which leads into End Stage Renal Failure Hence, it is the considered opinion of this Forum that, complainants have established that Amol Dalvi died due to End Stage Renal Failure, the Opponent No.1 has wrongly repudiated the insurance claim.
[8] As it reveals from the policy that the Opponent No.1 had assured to pay Rs.15,22,065/- to the complainant in the event of major medical illness. In such circumstances, this Forum is of the opinion that, the complainants are entitled to receive that much amount from the Opponent No.1. They are also entitled for the compensation on the ground of mental and physical sufferings to the tune of Rs.10,000/- and on the ground of costs Rs.5,000/-. It is the case of the Opponent No.2 that, if the claim is settled, the claim amount shall be paid to the Opponent No.2 from whom predecessor of the complainant had obtained loan. This Forum is of the opinion that, the said adjustment should be allowed.
[9] The learned Advocate for the Opponent No.1 argued before the Forum that, the terms of the agreement as regards the insurance policy have to be strictly construed to determine the extent of liability of the insurer and the insured cannot claim anything more than what is covered by the insurance policy. In that context, the learned Advocate has placed reliance upon the ruling of the Hon’ble Supreme Court in Civil Appeal No.4913 of 1997 in between Oriental Insurance Co. Ltd. v/s. Sony Cheriyan reported in S.C. & National Commission Consumer Law Cases (1996-2005). It is significant to note that there is no dispute about the principle laid down in the said ruling. On careful scrutiny of the evidence which is adduced before this Forum, it is the opinion of this Forum that, the disease End Stage Renal Failure is referred in the policy agreement and as it appears from the evidence that, that is one of the cause referred in Leptospirosis by which Amol Dalvi died. In such circumstances, this Forum is of the opinion that the ruling sited by the learned Advocate is not helpful to adjudicate the dispute between the parties. In the result this Forum answers the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed against the Opponent No.1 only.
2. It is hereby declared that the Opponent No.1 has caused deficiency in service by wrongly repudiating the claim of the complainants.
3. Opponent No.1 is directed to pay Rs. 15,22,065/- [Rupees Fifteen Lakh Twenty Two Thousand and Sixty Five only] to the complainant within six weeks from the date of receipt of copy of order.
4. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. If the amount is deposited by the Opponent No.1, it shall be appropriated towards the housing loan which was obtained by the predecessor of the complainants from the Opponent No.2.
6. Opponent No.1 is directed to pay amount of Rs.10,000/- [Rupees Ten Thousand only] to the complainant towards compensation for mental and physical sufferings and Rs.5,000/- [Rupees Five Thousand only] towards costs within six weeks from the date of receipt of copy of order.
7. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
