| First Appeal No. A/1081/2017 | | ( Date of Filing : 02 May 2017 ) | | (Arisen out of Order Dated 07/03/2017 in Case No. C/25/2016 of District Davangere) |
| | | | 1. The Branch Manager, | | Kotak Mahindra Old Mutual Life Insurance Ltd Regional Office, 2nd Floor, Plot No.C-12, G-Block, BKC, Bandra East, Mumbai-400051. | | 2. The Manager, | | Kotak Mahindra Old Mutual Life Insurance Ltd Corporate Office, 7th Floor, Kotak Infinity, Building No.21, Infinity Park, Office W.E. Highway, General A.K. Vaidya Marg, |
| ...........Appellant(s) | |
| Versus | | 1. K.Shankar | | S/o late Karandi Subbanna, Aged about 45 years, R/at Basavarajapura Billage, Rudrapura Post, Channagiri Taluk, Davanagere Dist. | | 2. The Manager, | | Mahindra & Mahindra Finance Service Ltd., (wrongly described by complainant as Kotak Mahindra and Mahindra Finance Service Ltd) Near Jayadeva Circle, Davanagere. |
| ...........Respondent(s) |
| | First Appeal No. A/1082/2017 | | ( Date of Filing : 02 May 2017 ) | | (Arisen out of Order Dated 07/03/2017 in Case No. C/27/2016 of District Davangere) |
| | | | 1. The Branch Manager, Kotak Mahindra Old | | Kotak Mahindra Old Mutual Life Insurance Ltd Regional Office, 2nd Floor, Plot No.C-12, G-Block, BKC, Bandra East, Mumbai-400051. | | 2. The Manager, | | Kotak Mahindra Old Mutual Life Insurance Ltd Corporate Office, 7th Floor, Kotak Infinity, Building No.21, Infinity Park, Office W.E. Highway, General A.K. Vaidya Marg, |
| ...........Appellant(s) | |
| Versus | | 1. K.Shankar | | S/o late Karandi Subbanna, Aged about 45 years, R/at Basavarajapura Billage, Rudrapura Post, Channagiri Taluk, Davanagere Dist. | | 2. The Manager, | | Mahindra & Mahindra Finance Service Ltd., (wrongly described by complainant as Kotak Mahindra and Mahindra Finance Service Ltd) Near Jayadeva Circle, Davanagere. |
| ...........Respondent(s) |
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| Final Order / Judgement | Dtd.29.08.2022 A/1081/2017 O R D E R BY Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER - This is an appeal filed U/s.15 of CPA 1986 by OP.2 & 3/Appellants aggrieved by the order dtd.07.03.2017 passed in CC/25/2016 on the file of Davanagere District Forum.
- The Commission examined the impugned order, grounds of appeal and appeal papers.
- It is found from the impugned order that OP.1 to 3 were placed exparte. The nominee of insured/Late Karandi Subbanna raised consumer complaint to settle the insurance claim towards the vehicle financed by OP.1. Hence sought to settle the policy amount of Rs.17 lakhs along with interest at 2% p.m. and sought compensation of Rs.1 lakh. The Forum below accepted the case of the nominee/Complainant, directed the OPs to pay Rs.15,32,609/- along with interest at 12% p.a. from the date of filing complaint till realisation, and awarded Rs.10,000/- towards mental agony and Rs.5,000/- towards cost of litigation. Learned counsel for Appellants would submit that, deceased Karandi Subbanna availed loan from M/s.Magma Fincorp Ltd., to purchase JCB and said M/s.Magma Fincorp Ltd., has taken group insurance policy from OP.2 & 3/Appellants herein, and the deceased/Karandi Subbanna was a beneficiary in the said policy, and being a nominee of the beneficiary has not made said M/s.Magma Fincorp Ltd., as one of the party to the complaint though its participation is necessary, was not at all examined by the Forum below has considerable legal force. Further would submit that, Membership Form/Declaration of Good health obtained by the insured from the Ops, wherein insured declared his good health in all respect, whereas discharge summary issued by Kasturba Hospital, Manipal discloses Mr.Karandi Subbanna aged about 54 years was admitted to the hospital on 08.01.2015 and he was discharged on 12.01.2015, wherein hospital diagnosed that he had “Left SFA stenting [7 x 55 MM Scuba Proximally and 6 x 150 MM Complete vascular (Self expanding) Distally] D one on 08.01.15. Plan – PTA to right SFA; Medical Management for LAD”. And he was discharged from the said hospital with advise “Review after 1 month in cardio 3 OPD with Dr.Ranjan Shetty with FBS/HBA1C/HB/RFT/NA/K Reports (Wed,Sat)”. Thus, had these documents were placed before the Forum below, ordered to direct OPs to settle the policy claim would not have been different, but facts remain that, OPs being insurer have failed to participate in the proceedings for the reasons best known is not appreciated by the Commission. In this regard, learned counsel for the Appellant would submit insured is bound by Sec.45 of Insurance Act to disclose Pre-existing disease. He had obtained policy on 15.04.2015 just three months after discharge from Kasturba Hospital, Manipal. Learned counsel for the Appellant submit that non-participating in the complaint proceedings is pleaded in his appeal memo in paragraph 3 of page no.4. Thus considering all these facts, in our view, matter require reconsideration by the Forum below. Accordingly, proceed to allow the appeal. Consequently set aside the impugned order dtd.07.03.2017 passed by Davanagere District Forum with a direction to readmit the case and decide the complaint affording opportunity to both parties as early as possible not later than 3 months from the date of receipt of this order. OPs are directed to pay Rs.10,000/- to the Consumer Welfare Fund of State Commission, and further directed to pay Rs.15,000/- as cost to the Complainant before the Forum below.
- The amount in deposit is directed to be transferred to the District Commission for needful.
- Notify copy of this Order to the District Commission and parties.
Lady Member Judicial Member *NS* | |
