IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of January, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 209/2020 (Filed on 22/12/2020)
Complainant : Eljo Jeevan Jose, S/o Late Jose P.D
Ponmankal House, Thellakom.P.O, Ettumannoor, Kottayam-686016
Reptd. by his brother and Power of
Attorney Holder Jithin Jito Jose
Ph-9995706466
(By Adv.Nithin M.K)
Vs
Opposite parties : 1. India First Life Insurance
Reptd by its Authorized Officer
Having its Office at 12th and
13th Floor, North [C] Wing,
Tower 4, Nesco IT Park
Nesco Centre, Western Express
Highway,
Goregaon (East) Mumbai-400063
2. Andhra Bank, Mr.Gardens
Carithas Junction, Thellakom P.O
Kerala-686630,
Reptd by its Manager.
(By Adv.R.Venugopala Pillai)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
The first opposite party is a registered insurance company which provides group credit life plan and the 2nd opposite party is a bank having various branches all over India and canvases its loan account holders as an agent / master policy holder to join the group credit plan of the 1st opposite party. The complainant’s father who is an account holder of the 2nd opposite party at the instigation of the 2nd opposite party had joined a group credit life plan of the 1st opposite party were in the complainant is a nominee. Then the manager of the 2nd opposite party has forced and convinced the complainant’s father Jose P.D to join group credit plan of the 1st opposite party stating that on the death of the policy holder during the loan period, the outstanding loan amount will be cleared by the 1st opposite party on behalf of the policy holder and the residual benefits if any will be paid to the nominee. Since complainant’s father was surviving a multiple fracture on leg due to a bike accident occurred on 2016 which resulted in his restricted movement and general weakness and also due to high premium rate, he was reluctant to join the said group credit life plan of the 1st opposite party. It is further averred in the complaint that the manager of the 2nd opposite party managed to convince the complainant’s father who has educational qualification only till 4th standard to join said policy scheme assuring him that all the necessary documentation will be taken care by her and the complainant’s father has only to sign the documents provided. Thus on the pursuance of the said manager for the loan of Rs.2,00,000/- obtained by the complainant’s father from the 2nd opposite party under loan account no.291630100005233 an amount of Rs.23,378/- was deducted towards premium from the complainant’s fathers bank account and a policy of 1st opposite party with COI No.G0000635-02703 and master policy no.G0000635 with a period of coverage from 25.10.2018 to 24.10.2031 was issued. After the issuance of the said insurance policy the then manager of the 2nd opposite party came to know about complainant’s father’s previous loan with no.291630100001671 and also persuaded the complainant’s father to take group credit life plan of 1st opposite party attached to the said account. Believing her words complainant’s father had obtained another policy of the 1st opposite party with COI No.G G0000635-03457 and master policy no.G0000635 with a period of coverage from 05.01.2019 to 04.01.2028 under loan account no.291630100001671 towards the then balance amount of Rs.7,14,679/- and amount of Rs.53,027/- was deducted towards premium. At the time of obtaining the policies the complainant’s father Jose P.D was hale and healthy except the difficulty in movement and general weakness to the multiple fracture and steel rod implant on leg due to a bike accident occurred in 2016. The complainant was prompt in payment of the loan instalments in both the loan on behalf of the complainant’s father and during September, 2019 the complainant’s father was detected with certain kidney problem at Medical College Hospital Kottayam and started treatment there. He was advised for dialysis from 19.01.2020 and was under treatment and on 25.04.2020 he expired due to septic shock at Medical College Hospital, Kottayam.
After the death of the complainant’s father on 5th May 2020 two claims were preferred by the complainant as his nominee through the 2nd opposite party to the 1st opposite party . The complainant had submitted all the necessary documents sought for by the opposite parties for processing the claims but both the claims were repudiated by the 1st opposite party vide two repudiation letters dated 31.10.2020. The reasons stated in the repudiation letters that the life insured has given false and misleading information to the company. It is averred in the complaint that signatures were obtained on blank forms from the complainant’s father by the manager of the 2nd opposite party and all the entries made in the said forms were done by the then manager on instruction of the agent of the 1st opposite party. It is further averred in the complaint that no health conditions were enquired or tests were conducted before or after the issuance of the policies. According to the complainant all the treatment records submitted with the 1st opposite party will clearly prove that the insured started his treatment for kidney disease from Medical College Hospital, Kottayam from September 2019. The 1st opposite party in the repudiation letters made mention of the refund of premium amount collected to the bank account at the time of preferring claim itself will prove their unfair trade practise for unlawful enrichment. The amounts shown refunded as insurance premium amounts fall deficit than what was actually deducted from the account of the complainant’s father. The purposeful repudiation of the genuine claim put forward by the complainants amount to deficiency in service from both opposite parties. The opposite parties are jointly and severally liable to clear the outstanding loan amounts payable under two loan accounts of the complainant’s father at the time of his death. According to the complainant he had to undergo several mental agony, inconvenience and loss due to the act of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to honour the claim preferred by the complaint and clear the outstanding loan amount payable under two loan account at the time of death of the complainant’s father or allow the complainant to realise the amount if any paid by him to clear the outstanding loan amount payable under the two loan accounts with 18% interest and allow Rs.1,00,000/- as compensation and Rs.20,000/- as litigation cost.
Upon notice opposite parties appeared before the commission and filed separate versions. The crux of the version of the 1st opposite party is as follows:-
The 1st opposite party is a company incorporated under the provisions of the companies act having its registered office at Mumbai. The 1st opposite party has acted strictly in furtherness at the terms and conditions of the insurance contract and as such there has been no deficiency in service or unfair practice from the part of the 1st opposite party. It is submitted in the version that after understanding all the terms and conditions of the 1st opposite party the diseased life assured submitted the duly filled and signed proposal form cum health declaration forms for the two insurance policies. In the health declaration forms, the deceased life assured gave a declaration stating that the life assured had made true, complete and accurate disclosure of all the facts and circumstances as may be relevant for the acceptability of the proposal form. Against the question no.7 regarding whether the life assured had suffered from any medical ailments such as diabetes, high blood pressure, cancer, respiratory disease (including asthma), kidney or liver disease, stroke, any blood disorder, hair problems, hepatitis B or C, or tuberculosis, Psychiatric disorder, depression, Colitis or any other stomach problems, thyroid disorders, reproductive organs, HIV aids or related infections, the life assured answered no. Relying upon the declaration made in the application forms and believing the same be true and correct, the first opposite party issued subject policies. It is alleged in the version that life assured was suffering from chronic kidney disease, diabetes mellitus and high blood pressure and was under treatment for the same on 2018 at Govt.Medical College Hospital, Kottayam. The 1st opposite party has received death claim intimation from the complainant being the nominee of the diseased life assured informing that life assured has expired on 25.04.2020. During the process of the death claim it was revealed that the diseased life assured was suffering from chronic kidney disease, diabetes mellitus and high blood pressure and was under the treatments for the same since 2018 at Medical College Hospital, Kottayam. Thus it clearly reflux that this material details affect the decision of the insured for acceptance or rejection of the contract of insurance which were wilfully suppressed by life assured as the same was not disclosed by him in the proposal form at the time of taking the policy. It is further averred in the version that life assured has with malafide intension concealed and suppressed the medical history to avail undue advantage. It is further submitted in the version that if it was in the knowledge of the 1st opposite party, the said policy would not have been issued or the opposite party would have rightfully rejected the claim of the complainant on the ground of suppression of the material fact by the diseased life assured at the time of applying the subject policy.
The 1st opposite party has duly refunded the premium collected towards the subject policy. The premium for the 1st policy was Rs.18,686/- and opposite party has duly refund the amount of Rs.18,844/- and premium of second policy was Rs.53,027/- and the 1st opposite party duly refunded the said amount. The 1st opposite party rightly repudiated the claim in accordance with the terms and conditions of the policy and principles of the insurance law, as such there has been no deficiency in service on the part of the 1st opposite party.
The version of the second opposite party as follows:- 2nd opposite party is a nationalized bank in India. The central govt in exercise of the powers conferred by Section.9 of the Banking Companies (acquisition and transfer of undertaking) at 1970 after consultation with the Reserve Bank of India has notified the amalgamation of Andra bank, and corporation bank and the union bank of India scheme 2020 (Amalgamations Scheme) and the same came into force on April 01, 2020. Thereafter the 2nd opposite party is entitled to sue and be sued in its own name for and on behalf of the erstwhile Andra bank.
The 2nd opposite party is not an agent of the 1st opposite party as alleged by the complainant and not canvassed business for them. The 2nd opposite party has not instigated the late Jose P.D to join any scheme of the insurance company. The insurance policies are the issued by the 1st opposite party to the insured directly and not to Andra Bank. The bank had not pressurised late Jose P.D to join any insurance company. The said Jose after understanding the terms and conditions of the policy only joined the insurance for which the bank is not responsible or accountable. The said late Jose is a customer of the bank having mortgage loans. The only thing is that after his joining the policies at the request of the customer the bank paid the due premium to the insurance company. Apart from this the bank is not responsible for joining the insurance policies. The complainant preferred the claim directly with the insurance company and his claim was rejected by the 1st opposite party. The allegation that the insurance proposal forms were forged by the opposite parties is false. At the request of customer, bank has only attested the signature of the customer in the application form and confirmed details of the mortgaged loan availed by the customer. The 2nd opposite party is not responsible or accountable for any act of the 1st opposite party or the insured. It is submitted in the version that the 2nd opposite party is making every effort of recovery of overdue amount in the entire loan accounts. As a part of the same all customers are being contacted and requesting and reminding them to remit the overdue instalments in time. As part of the recovery effort the complainant was also requested to remit the overdue instalments in the loan accounts to avoid classification as NPA accounts. The 2nd opposite party is not liable to pay any amount to the compliant. On account of the insurance policy under which claim is sought by the complainant and the 2nd opposite party is not liable to pay any compensation or damages as claimed by the complainant.
Complainant filed proof affidavit in lieu of chief examination along with documents which were marked as Exhibit A1 to Exhibit A13 from the side of the complainant.
Kamelsh Misra who is AVP/ legal of the first opposite party filed proof affidavit in lieu of the chief examination for and on behalf of the first opposite party and marked as Exbt.B1 to Exht.B8 from the side of the first opposite party. Rejani P who is the branch head of the 2nd opposite party filed proof affidavit in lieu of the chief examination. No documentary evidence for the 2nd opposite party. On evaluation of complaint, version and evidences available on records we are of the opinion that following issues to be considered.
1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. If so what are the reliefs and costs?
Points nos. 1 and 2 together
There is on disputes on facts that the complainant’s father Jose P.D had availed a loan of Rs.2,00,000/- from the 2nd opposite party with a loan account no. 291630100005233. And another loan from the 2nd opposite party vide loan account no.291630100001671. According to the complainant, his father late Sri.Jose P.D availed the insurance of group credit life plan of the 1st opposite party for the said two loan accounts at the instigation of the then the manager of the 2nd opposite party. There is no disputes on facts that the father of the complainant Sri.Jose P.D had availed a group credit life plan of the first opposite party for the loan of 2 lakhs under loan account no.291630100005233 for a period of coverage from 25.10.2018 to 24.10.2031. Exhbt.A2 is the certificate of the insurance issued by the 1st opposite party under master policy no.G0000635 and Exhbt.A3 is the certificate of insurance issued by the 1st opposite party under master policy no.G0000635 in the name of the Sri.Jose P.D. On perusal of Exhbt.A2 we can see that the 1st opposite party offered an insurance of mortgage loan of Rs.7,14,679/- under loan account no.291630100001671 for the period of 05.01.2019 to 04.01.2028. It is further proved by the Exhbt.A3 that the 1st opposite party has offered an insurance for mortgage loan of Rs.2 lakhs under loan account no.291630100005233 for a period of 25.10.2018 to 24.10.2031.
The specific case of the complainant is that the father of the complainant Sri.Jose P.D was expired on 25.04.2020 due to the kidney disease. According to the complainant though he had filed two claims with the 1st opposite party along with all necessary documents the 1st opposite party repudiated the claims of the complainant stating that the father of the complainant has given false and misleading information to the company for availing the insurance policy. The complaint was resisted by the 1st opposite party that the diseased life assured has willfully suppressed his health condition in the proposal form and to obtain the policy by misleading the 1st opposite party. It is contended by the first opposite party that Jose P.D who is the diseased life assured was suffering from chronic kidney disease, diabetes mellitus, hypertension and was under treatment for the same from 2018 at Govt. Medical College Hospital, Kottayam and he availed the insurance coverage by suppressing these material part from the first opposite party. It is contented by the complainant that the then manager of the 2nd opposite party convinced his father that all the necessary documentation would be taken by the manager and father of the complainant had only to sign the documents. It is further contended by the complaint that the proposal form which was kept with the 2nd opposite party and the proposal form produced by the 1st opposite party are totally different both in printing the number of columns and its contents. Exhbt B1 is a proposal form which is produced by the 1st opposite party in respect to the loan account no.291630100005233 for the coverage of insurance for an amount of Rs.2,00,000/-. Exhbt.B3 which is the proposal form produced by the 1st opposite party in respect of loan account no.291630100001671 for the insurance coverage for loan account of Rs.7,14,679/-. On perusal of Exhbt.B1 and Exhbt.B3 we can see that the life assured had answered in negative to all the questions in the proposal form except the question no.1 regarding his health condition. He had answered in negative to the question no.7 with respect to his health condition. Exhbt.A4 and Exhbt.A5 are the proposal forms submitted by the complainant to the 1st opposite party for availing the insurance in respect of the loan account no.291630100001671 and 291630100005233 respectively. On comparison of the Exhbt.A4 and Exhbt.A5 with Exhbt.B1 and Exhbt.B3 we can see that there is a total difference in the bottom portion of the all documents in the declaration by the member. On perusal of the Exhbt.B1 and Exhbt.B3 the proposer had affixed the signature under declaration by the member and Exhbt.B1 and Exhbt.B3 does not bear the signature of the then manager of the 2nd opposite party. However, in Exhbt.A4 and Exhbt.A5 the proposed Jose P.D has affixed the sign confirmed his sign the declaration which was proposed to be signed in vernacular for electorate members. The Exhbt.A4 and Exhbt.A5 bearing the signature and seal of the then manager of the 2nd opposite party. In Exhbt.A5 the proposer have negative answer to the all the questions with respect to his health condition. Whereas on perusal of Exht.A4, we can see that all the queries regarding the health conditions of the proposer has left as unanswered. The complainant applied for appointing an advocate commissioner to seize the copy of the proposal form of the insurance policies from the office of the 2nd opposite party. The advocate commissioner seized the photocopy of the proposal forms of the both loans from the office of the 2nd opposite party and marked as Exhbt.X1 and X1(a). The entries in Exht.x1 and Exbt.X1(a) are exactly the same as the entries in Exhbt.A4 and Exhbt.A5. On a mere comparison of Exhbt.B1 and Exhbt.B3 with Exhbt.A4 and Exhbt.A5 and with X1 and X1(a) we can see differences in the signatures affixed in Exhbt.B1 and Exhbt.B3. The signatures affixed in Exhbt.X1 and X1(a) and Exhbt.A4 and Exhbt.A5 are seemed to be similar ones but signatures in Exhbt.B1 and B3 can be very well distinguished with naked eyes. On a close perusal of Exhbt.B1 and Exhbt.B3 we can see that there are differences in the contents of the said documents from the X1 series and Exhbt.A4 and Exhbt.A5 documents. In Exhbt.B1 and Exhbt.B3 the columns regarding the gender, date of birth are given in the right top portion. However, in Exhbt.X1 and Exhbt.X1(a) and Exhbt.A4 and Exhbt.A5 the said columns are given under the head of the details of the members. Moreover, in Exhbt.B1 and Exhbt.B3 it is recorded that the height of the proposer insured as 5 feets and 0.7 inches and weight as 70 kg. Whereas the said in Exhbt.A4 and Exhbt.A5 and Exhbt.X1 and Exhbt.X1(a) the said columns are left blank. Moreover it is pertinent to not that the 1st opposite party could not produce the originals of the Exhbt.B1 and Exhbt.B3. The 1st opposite party did not give any explanation for that whether they have processed the original proposal form which is filed by the proposer insured Sri.Jose P.D and forwarded through the 2nd opposite party for obtaining the insurance coverage of the loan which is obtained by the father of the complainant from the 2nd opposite party. We are of the opinion that the 1st opposite party failed to prove the case that diseased life assured had obtained the insurance coverage for loan availed by him from the 2nd opposite party by suppressing his health conditions and there by mis-lead the first opposite party. We cannot believe that a proposal form which is forwarded by a bank to avail an insurance coverage for the loan disbursed by the bank to an individual did not bear the signature and seal of the manager of the bank concerned.
The 1st opposite party mainly relied upon the Exhbt.B7 documents to prove that the diseased life assured has chronic kidney disease, diabetes mellitus and hypertension since 2018 and he was under treatment at Govt.Medical College Hospital, Kottayam at the time of availing the insurance policy. Exhbt.B7 is a report filed by South India investigation services along with some photocopies of the medial report of the late Sri.Jose P.D. Though in Exhbt.B7 there are some investigation findings filed by South India investigation services in page no.7 of the said report it is stated that they have also requested for the medical reports in treated hospital, but due to covid-19 situation they did not receive any document for requested and they were unable to provide medical records apart from he submitted documents. According to the investigator of the 1st opposite party all the records which were attached to the Exhbt.B7 were produced by the complainant himself. It is evident from Exhbt.B7 that the investigator of the 1st opposite party had prepared their report and recommended for the repudiation of the claim without consulting with the doctors who treated the diseased life assured and without perusing the original treatment reports of the diseased life assured.
Moreover Exhbt.B6, which is the medical certificate issued by Dr.Jayakumar on 14.10.2020 does not states from where he collected the details of the patient to issue Exhbt.B6. It is pertinent that the Exhbt.B6 is only a photocopy and Exhbt.B6 does not contain the details of the out- patient number or in-patient number of the diseased patient who had treated at Medical College Hospital, Kottayam by the doctor who issued the said certificate. It is pertinent to note that the opposite party has not taken any steps to examine the doctor who issued the Exhbt.B6 certificate to prove the contents of the same. Thus we are not inclined to accept the contentions of the 1st opposite party that the diseased life assured was under the treatment for chronic kidney disease, diabetes mellitus and hypertension since 2018 at Medical College Hospital Kottayam.
As mentioned earlier the 1st opposite party had assured the diseased Jose P.D that upon of his death, the 1st opposite party would pay the sum assured in the scheduled loans. Thus we are of the opinion that the 1st opposite party is liable to pay the sum assured by Exhbt.A2 and Exhbt.A3 policies to the 2nd opposite party and thereby indemnify the legal heirs of Sri.Jose P.D from the liability of the loan accounts. Without discharging their contractual liability under contract of insurance the 1st opposite party had returned the premium amount which they had collected from the life assured without any cogent and legal reasons and thereby tried to evade from the liability to indemnify the legal heirs of the life assured in the event of his death. The said act of the 1st opposite party amounts to inadequacy and imperfection in contract of insurance and service offered by them which amounts to deficiency in service. No doubt the complainant who being the nominee of the life assured has suffered much mental agony and financial loss due to deficiency in service and unfair trade practice on the part of the first opposite party. On a close evaluation of the above discussion we are of the opinion that the complainant had succeeded to prove his case and complaint is to be allowed. Thus we allow the complaint and pass the following order.
We here by direct the 1st opposite party to clear the outstanding loan amounts payable under the two loan accounts nos.291630100005233, 291630100001671 at the time of the death of the Sri.Jose P.D who is the father of the complainant on 25.04.2020 or in alternative pay the amount which is paid by the complainant to clear the outstanding loan amounts under the two loan account nos.291630100001671, 291630100005233 with 9% interest from 21.12.2020 the date on which the complaint is filed till realization.
We hereby direct the 1st opposite party to pay an amount of Rs.25,000/- as compensation to the complainant for the deficiency in service on the part of the 1st opposite party .
We here by direct 1st opposite party to pay Rs.3,000/- as cost of this litigation.
The order shall be complaint within 30 days from the receipt of the copy of this order, failing which the compensation amount shall carry 9% further interest from the date of this order till realization.
Pronounced in the open Commission on this the 28th day of January, 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri.K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of General Power of attorney dated 06.11.2020
A2- Copy of certificate of insurance of master policy no.G0000635.
A3- Copy of certificate of insurance of master policy no.G0000635.
A4- Copy of insurance mortgage loan account no.29163100001671.
A5- Copy of insurance mortgage loan account no.291630100005233.
A6, A6 (a) –Photographs
A7- Photograph
A8- Copy of letter dated 31/10/2020 issued by India First Life Insurance Company Ltd.
A9- State of account issued by Union Bank
A10- Copy of lawyer’s notice dated 13.11.2020.
A11 & A11(a)- Postal receipt
A12- Reply lawyer’s notice dated 27.11.2020
A13- Letter dated 25/11/2020 from India First Life Insurance Co.Ltd.
Exhibits marked from the side of opposite parties
B1- Copy of insurance mortgage loan account no.291630100005233.
B2- Copy of certificate of insurance of master policy no.G0000635.
B3- Copy of insurance mortgage loan account no.291630100001671
B4- Copy of certificate of insurance of master policy no.G0000635
B5- Copy of claim intimation form issued India First Life Insurance Co.Ltd.
B6- Copy of certificate signed by Dr.K.P.Jayakumar, Govt.Medical College Hospital Kottayam.
B7- Copy of treatment details of Late Sri.Jose P.D
B8- Letter dated 31/10/2020 issued by India First Life Insurance Co.Ltd
Exhibits marked from the side of advocate commissioner
X1 & X1 (a) - Copy of insurance mortgage loan account no.291630100001671 and no.291630100005233.
By order
Sd/-
Assistant Registrar
