Tamil Nadu

South Chennai

CC/423/2018

S John Robert - Complainant(s)

Versus

ICICI Pudential Life Insurance & Others - Opp.Party(s)

M/s K Ganesan

05 Mar 2020

ORDER

                                                                            Date of filing      : 03.12.2018

                                                                               Date of disposal : 05.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.423/2018

DATED THIS THURSDAY THE 05^TH DAY OF MARCH 2020

                                 

S. John Robert,

S/o. Mr. Selvanayagam,

Flat No.4ab, Kings Trinity Apartments,

Dr. Ambedkar Street Near Vaigai Nagar,

Ext Tambaram West,

Chennai – 600 045.                                                       .. Complainant.                          

..Versus..

 

 

1. ICICI Prudential Life Insurance Company Ltd.,

Represented by its Branch Manager,

No.82, 84 & 86, 2^nd Floor, Bascon Maeru,

Kodambakkam High Road,

Nungambakkam,

Chennai – 600 006.

 

2. ICICI Bank Limited,

Represented by its Branch Manager,

No.2/1, LB Road, Venkata Rathinam Nagar,

Adyar,

Chennai – 600 020.                                                ..  Opposite parties.

 

Counsel for the complainant          : M/s. K. Ganesan & others

Counsel for the 1^st opposite party : M/s. S. Rajeni Ramadass &  

                                                          another

Counsel for the 2^nd opposite party : M/s. Saikrishnan Associates &     

                                                           another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to restore the policy contract bearing No.20787611 on the books of the 1^st opposite party with full benefits accruing thereon or alternatively, to refund the premium amount of Rs.2,00,418/- paid to effect the Single Premium Life Insurance Policy and to pay a sum of Rs.5,00,000/- towards compensation for mental agony, pain and suffering with cost of Rs.25,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he has availed Life Insurance Policy bearing No.20787611, Loan Protect Plus SP for the protection of loan as well as life from the 2^nd opposite party  and paid the premium amount of Rs.2,00,418/- which was deducted from the Loan Account No.LBCHE00003398123 from the loan amount of Rs.50,00,000/-.   The complainant submits that as per the Loan Protect Plus SP Policy, the complainant is entitled to cover the life for a period of 7 years.   The 1^st opposite party issued a Single Premium Loan Protect Plus SP Policy bearing No.20787611 for a sum assured of Rs.50,00,000/-, Accidental death benefit of Rs.50,00,000/- and an accelerated critical illness & Total Permanent Disability benefit of Rs.50,00,000/- with the benefits reducing during the policy terms.  The complainant submits that the complainant was admitted as an inpatient from 29.11.2017 to 13.12.2017 in Christian Medical College Hospital, Vellore and from 27.12.2017 to 29.12.2017 in Annai Arul Hospital, Tambaram, Chennai for treatment of Kidney transplantation ailment and information also was given to the opposite party through e-mail dated:02.12.2017.   After taking treatment, the complainant preferred a critical illness claim applicable under the Loan Protect Plus SP Policy bearing No.20787611 for both the periods with the 1^st opposite party.   The 1^st opposite party wantonly and deliberately failed to process the claim even after repeated requests and remainders including e-mail communications and written communications dated:05.03.2018.   Thereafter, the physicians advised the complainant for Kidney transplantation which was done successfully on 24.05.2018 and the complainant is under medical supervision.  

2.     The complainant had incurred huge expenses related to his hospitalization and towards Kidney transplantation and made a claim for reimbursement.   The complainant states that the 2^nd opposite party failed in its duty to explain the terms and conditions of the policy contract and was only keen in collecting the premium of Rs.2,00,418/- which is a huge sum on any count, thereby committed deficiency in service which led to a denial of critical illness cover for the complainant resulting in repudiation of the policy and a loss of Rs.2,00,418/-.   As per the policy, the complainant is entitled to a sum of Rs.50,00,000/- towards critical illness.  The complainant was put to immense mental agony and distress on account of his claims getting rejected due to the deficient service by the opposite parties.   The opposite parties rejected the claim in Policy No.20787611 preferred by the complainant vide letter dated:27.07.2018 with remarks that the claim is rejected under non-disclosure of treatment taken towards diabetes and anemia. The complainant submits that the 1^st opposite party has the bounden duty of honouring the contractual obligation of paying for the sum assured for critical illness cover due to the critical illness suffered by the complainant.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 1^st opposite party states that he issued Loan Protect SP Policy after the receipt of duly filled loan proposal form bearing No.OS06966532 along with duly signed Customer Declaration Form for issuance of insurance policy on 03.03.2017.  The 1^st opposite party states that after scrutiny and verification, due policy bearing No.20787611 was issued risk commencement dated:03.04.2017 onwards after receipt of the onetime premium of Rs.2,00,418/- for the period of 7 years till 03.04.2024.   The 1^st opposite party states as per Clause 6(2) and 4(1) of the insurance Regulatory and Development Authority (Protection of Policy holder’s Interests) Regulations, 2002, the Freelook period given as 15 days from the date of receipt of the policy.   The policy documents were dispatched on 07.04.2017 through Blue Dart Courier services via AWB 40972194771 which was duly delivered to the complainant on 10.04.2017.   Hence, the free look period expired on expiry of 15 days i.e. on 10.04.2017.   The 1^st opposite party states that for the first time, the complainant approached the insurance company after the Freelook period, through his health claim from dated:05.03.2018 for the treatment availed from 29.11.2017 to 13.12.2017 and from 27.12.2017 to 29.12.2017 for Diabetes, Hypertension, Diabetic Nephropathy, Obesity and Obstructive Sleep Apnea, Dyslipidemia, Chronic Kidney Disease and hypothyroidism, Catheter related infection – Bacteremia, Chronic Kidney disease V D Hypertension and Anemia of Chronic Kidney disease etc.   That on receiving the claim under subject policy, insurance company put the same under process as per the standard mandate.   That since the claim of the complainant was filed within 8 months from the date of issuance, it was duly covered under the definition of Early Claim  as per Section 45 of the Insurance Act, 1938 as amended by the Insurance Laws (Amendment) Act, 2015 hence, investigator was authorised for conducting discrete investigation with respect to complainant by insurance company.  Thereafter, the complainant was hospitalized in CMC, Vellore from 29.11.2017 to 13.12.2017. 

4.     The 1^st opposite party states that high blood pressure, uncontrolled diabetes Mellitus, hypertension, Obesity and Obstructive Sleep Apnea, Dyslipidemia, Chronic Kidney Disease etc are the chronic diseases has been suppressed by the complainant at the very inception of proposal for insurance.   The 1^st opposite party states that in the case of Ravneet Singh bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 where the Hon’ble Supreme Court laid down that the test of deficiency in service by stating that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.   The burden of proving the deficiency in service is upon the person who alleges it”.  The 1^st opposite party states that the policy is for Rs.50,00,000/- towards critical illness.  The 1^st opposite party states that in view of the above factual submissions and documents produced on record, it is proved beyond any doubt that the complainant was hospitalized from the period starting from 25.04.2016 till 29.04.2016 in CMC Vellore during which he was diagnosed with uncontrolled hypertension and diabetes, Bilateral diabetic retinopathy, diabetic Nephropathy, Sleep Apnea on Bi PAP & Dyslipidemia & Obesity that is prior to the issuance of subject policy.   However, the same was not disclosed in proposal form for subject matter of issuing policy which amounts to material suppression of fact.   Hence, the claim was rightly rejected vide letter dated:27.07.2018 as per Section 45 of the Insurance Act thereby declaring subject policy null and void.   Further, the insurance company is not liable for any compensation and / or cost and is liable to be dismissed.

5.      The brief averments in the written version filed by 2^nd opposite party is as follows:-

The 2^nd opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 2^nd opposite party is a separate legal entity, registered under the Companies Act, 1956 and has nothing to do with the insurance policy contract executed between the 1^st opposite party and the complainant.   Moreover, it is the complainant who had chosen the 1^st opposite party for availing the insurance policy and entered into an agreement with the 1^st opposite party.   In such circumstances, the 2^nd opposite party bank does not have any legitimate obligation to explain, the terms and conditions of the insurance policy obtained by the complainant from the 1^st opposite party.  Therefore, the 2^nd opposite party bank cannot be blamed for any deficiency in service or unfair trade practice as alleged by the complainant and hence, the complaint against the 2^nd opposite party is liable to be dismissed.

6.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A7 are marked.  Proof affidavit of the 1^st opposite party is filed and documents Ex.B1 to Ex.B8 are marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party is filed and documents Ex.B9 to Ex.B11 are marked on the side of the 2^nd opposite party.

7.      The points for consideration is:-

1. Whether the complainant is entitled to get restore the policy bearing No.20787611 with full benefits or alternatively get refund of the premium amount of Rs.2,00,418/- paid to the opposite party as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony, deficiency in service etc with cost of Rs.25,000/- as prayed for?

8.      On point:-

The complainant and the 2^nd opposite party filed their respective written arguments.  The 1^st opposite party has not filed any written arguments.  Heard the complainant’s Counsel also.   Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that he has availed Life Insurance Policy bearing No.20787611, Loan Protect Plus SP for the protection of loan as well as life from the 2^nd opposite party  and paid the premium amount of Rs.2,00,418/- which was deducted from the Loan Account No.LBCHE00003398123 from the loan amount of Rs.50,00,000/- as per Ex.A1(S).   Further the contention of the complainant is that as per the Loan Protect Plus SP Policy, the complainant is entitled to cover the life for a period of 7 years.   The 1^st opposite party issued a Single Premium Loan Protect Plus SP Policy bearing No.20787611 for a sum assured of Rs.50,00,000/-, Accidental death benefit of Rs.50,00,000/-  and an accelerated critical illness & Total Permanent Disability benefit of Rs.50,00,000/- with the benefits reducing during the policy terms is admitted.  Further the contention of the complainant is that the complainant was admitted as an inpatient from 29.11.2017 to 13.12.2017 in Christian Medical College Hospital, Vellore and from 27.12.2017 to 29.12.2017 in Annai Arul Hospital, Tambaram, Chennai for treatment of Kidney transplantation ailment as per Ex.A3 & Ex.A4.   Due information also given to the opposite party vide e-mail dated:02.12.2017 as per Ex.A2.   After taking treatment, the complainant preferred a critical illness claim applicable under the Loan Protect Plus SP Policy.   The 1^st opposite party wantonly and deliberately failed to process the claim even after repeated requests and remainders including e-mail communications and written communications dated:05.03.2018 as per Ex.A5.   Thereafter, the physicians advised the complainant for Kidney transplantation which was done successfully on 24.05.2018 and the complainant is under medical supervision.   The complainant had incurred huge expenses related to  his hospitalization and towards Kidney transplantation and made a claim for reimbursement.   But the opposite parties has wrongly and illegally denied reimbursement of medical expenses paid towards critical illness as per the policy and repudiated the claim and totally forgotten the calculation of one time premium of Rs.2,00,418/- amounts to deficiency in service.   As per the policy, the complainant is entitled to a sum of Rs.50,00,000/- towards critical illness.  But the complainant claimed a meagre amount of Rs.1,23,861.66 towards critical illness as per Ex.A3 & Ex.A4.   The rejection of claim on the basis of suppression of material facts related to Diabetic mellitus and other allied disease cannot be considered.  

9.     The learned Counsel cited the decisions related in:

II (2006) CPJ 357

RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, JAIPUR

SHANTI DEVI

..Vs..

LIFE INSURANCE CORPORATION OF INDIA & ANR.

 

Held that

From the above, diabetes cannot be classified with a particular name of disease.  It is a general term for diseases characterized by excessive urination. Mellitus is a chronic disorder of carbohydrate metabolism, characterized by hyperglycemia and glycosuria and resulting from inadequate production or utilization of insulin”.

I (2017) CPJ 498 (NC)

RAVINDER SINGH BINDRA

..Vs..

NATIONAL INSURANCE COMPANY LIMITED & ORS.

 

Held that

Based on the above, learned Counsel claimed that no concealment is proved from the record as proposal form is not available on the record.  Also suppression of any pre-existing disease does not arise because the expenses in question relate to heart disease which was definitely and admittedly not pre-existing as no proof has been placed on record by the Insurance Company.  Even if hypertension is considered to be a pre-existing disease, its concealment is not proved on record due to non-availability of the proposal form.”  … 

..” The main question is that even if there were ailments, counsel for the petitioner cannot produce the proposal form, filled up by the deceased … There is no evidence on the record that the complainant Sh.Rajider Kumar Goel had made the false statement or suppressed any fact before the authorities of insurance company.

“ The proposal form is not traceable its benefit will also go to the LRs of the deceased.  There is certainly suppression of fact/document not by the complainant but by the respondent Insurance Company”

 

10.    Further the contention of the complainant is that the allegation of the opposite parties that after submitting the duly signed claim form, suppressing the material facts of hypertension and other disease and that the proposal form has not been filled by the complainant; is not acceptable because,  while the complainant applied for housing loan of Rs.50,00,000/- the opposite party insurance company come forward to provide loan Protection SP Policy cover.  The loan amount, life insurance critical illness etc were issued by the opposite party till the availing the policy.  The complainant had no critical illness is also proved from the records.  The wild allegation of the opposite party related to the suppression of material facts of Diabetics Mellitus etc shall not deemed to be a critical illness.  The critical illness of transplantation of kidney and allied treatment taken only after issuance of policy that too after a long period of 8 months proves the deficiency in service.

11.    The contention of the opposite parties is that admittedly, the opposite party issued Loan Protect SP Policy after the receipt of duly filled loan proposal form bearing No.OS06966532 along with duly signed Customer Declaration Form for issuance of insurance policy on 03.03.2017.  But on a careful perusal of proposal form Ex.B1, it is very clear that except the signature all the other details were typed.   Further the contention of the opposite parties is that after scrutiny and verification, due policy bearing No.20787611 was issued risk commencement dated:03.04.2017 onwards.  After receipt of the one-time premium of Rs.2,00,418/- for the period of 7 years till 03.04.2024.   The copy of the form increasing the sum assured and decreasing the policy premium along with the acknowledgement letters as per Ex.B2.  Further the contention of the opposite parties is that as per Clause 6(2) and 4(1) of the insurance Regulatory and Development Authority (Protection of Policy holder’s Interests) Regulations, 2002, the Freelook period given as 15 days from the date of receipt of the policy.   The complainant also received the policy on 10.04.2017.   Thereby, the Freelook period expired on 25.04.2017.   Thereafter, the complainant is not entitled to claim the premium amount. 

12.    Further the contention of the opposite parties is that for the first time, the complainant approached the insurance company after the Freelook period, through his health claim from dated:05.03.2018 Ex.B4 for the treatment availed from 29.11.2017 to 13.12.2017 and from 27.12.2017 to 29.12.2017 for Diabetes, Hypertension, Diabetic Nephropathy, Obesity and Obstructive Sleep Apnea, Dyslipidemia, Chronic Kidney Disease and hypothyroidism, Catheter related infection – Bacteremia, Chronic Kidney disease V D Hypertension and Anemia of Chronic Kidney disease etc.   The opposite parties put the claim under process as per the Standard mandate and appointed a investigator and after careful evaluation of the record it revealed that the complainant has provided incorrect information and suppressed material facts that he was hospitalized from 25.04.2016 to 29.04.2016.  Thereafter, the complainant admitted before CMC, Vellore from 29.11.2017 to 13.12.2017 as per Ex.B5 to Ex.B7.  On a careful perusal of Ex.B5 to Ex.B7, the complainant had the pre-history of diabetics, hypertensive, renal dysfunction etc for the past 6 years and suffered from renal dysfunction since 2015.   

13.    Further the contention of the opposite parties is that high blood pressure, uncontrolled diabetes Mellitus, hypertension, Obesity and Obstructive Sleep Apnea, Dyslipidemia, Chronic Kidney Disease etc are the chronic diseases has been suppressed by the complainant at the very inception of proposal for insurance.   But on a careful perusal of medical records, it is very clear that the complainant was a chronic diabetic mellitus patient having hypertension which can be controlled by proper treatment.  The said diabetic mellitus, hypertension etc are the causative factors of renal dysfunction syndrome is  not a disease which leads diabetic nephropathy disorder.  The law is also welled settled that such disorders can be controlled.   Further the contention of the opposite parties is that the allegation of deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming in the quality, nature and manner of performance.  Equally, the policy of insurance issued only on the basis of good faith.   In this case, disorders like diabetic mellitus, hypertension etc has been suppressed by the complainant from the very inception.    The long chronic diabetic for the past 10 years also considered. 

14.    Further the contention of the opposite parties is that admittedly, the policy is for Rs.50,00,000/- towards critical illness.   The refund of the premium amount of Rs.2,00,418/- never arise after the Freelook period.  But it is very clear from the records that after receiving such huge premium towards the policy, on the ground of suppression of pre-existing disease like diabetics, hypertension etc proves the deficiency in service.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall refund the premium amount of Rs.2,00,418/- with a compensation of Rs.50,000/- with cost of Rs.10,000/-                

In the result, this complaint is allowed in part.  The 1^st opposite party is directed to refund the premium amount of  Rs.2,00,418/- (Rupees Two lakhs four hundred and eighteen only) and to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.  The complaint as against the 2^nd opposite party is hereby dismissed.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 05^th day  March 2020. 

 

MEMBER                                                                                                                                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	03.04.2017	Copy of Policy Certificate Loan Protect Plus SP – UIN 105N150V01
Ex.A2	02.12.2017	Copy of e-mail by the complainant to 1st opposite party informing critical illness
Ex.A3	27.01.2018	Copy of Claimant Statement Form (Health Claims)
Ex.A4	20.02.2018	Copy of Claimant Statement Form (Health Claims)
Ex.A5	05.03.2018	Copy of letter of the complainant to 1st opposite party
Ex.A6	27.07.2018	Copy of claim repudiation letter sent by the 1st opposite party
Ex.A7	28.02.2017	Copy of list of Corporate Agents registered with the authority as on 28.02.2017

 

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1	03.03.2017	Copy of online proposal form with Customer Declaration Signed Form of the complainant
Ex.B2	03.04.2017	Copy of amended insurance policy with acknowledgement from the complainant
Ex.B3	03.04.2017	Copy of policy document terms and conditions given to the complainant
Ex.B4	05.03.2018	Copy of Claimant Statement Form No.20787611
Ex.B5	25.04.2018	Copy of Claim Investigation Report – negative
Ex.B6	25.04.2016 to 29.04.2016	Copy of Discharge Summary - CMC
Ex.B7	29.11.2017 to 13.12.2017	Copy of Discharge Summary - CMC
Ex.B8	27.07.2018	Copy of Void letter sent by the 1st opposite party to complainant

 

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-  

 

Ex.B9	24.03.2017	Copy of Loan Application Form dated:24.03.2017
Ex.B10	28.08.2017	Copy of Loan Agreement
Ex.B11		Copy of Statement of Accounts and Re-payment Schedule

 

 

 

MEMBER                                                                                                                                                                                                PRESIDENT