BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GADAG. Basaveshwar Nagar, Opp: Tahasildar Office, Gadag COMPLAINT NO.6/2021 DATED 7th DAY OF DECEMBER-2022 |
BEFORE: | | | HON'BLE MR. D.Y. BASAPUR B.Com, L.L.B(Spl.,) PRESIDENT | | HON'BLE Mr. RAJU. N. METRI, B.Com, L.L.B(Spl.,) MEMBER HON'BLE Mrs. YASHODA BHASKAR PATIL, B.Com, L.L.B(Spl.,) M.Ed., WOMAN MEMBER | | |
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Complainant: 1) Smt. Suvarna W/o Shivappa Tuggani
Age:58 Yrs, Occ:House wife
R/o Shantagiri Tq:Gajendragad
Dist:Gadag.
2) Hullappa S/o Shivappa Tuggani
Age:38, Occ:Agriculturist,
R/o Shantageri Tq:Gajendragad
Dist:Gadag.
3) Smt. Sharanavva W/o Hanamantappa Dyavannavar, Age:35 Yrs, Occ:Agriculurist.
R/o Shantageri Tq:Gajendragad
Dist:Gadag.
4) Smt. Renuka W/o Sharanappa Gaji
Age:32 Yrs, Occ:Agriculturist.
R/o Shantageri Tq:Gajendragad
Dist:Gadag.
5) Smt. Rekha W/o Sharanappa Goudar
Age:30 Yrs, Occ:House wife.
R/o Shantageri Tq:Gajendragad
Dist:Gadag.
(Rep. by Sri. D.R.Kulkarni, Advocate)
V/s
Respondents :- | 1) | Kotak Life Insurance, Deshpande Nagar, V.A. Kalburgi Emirald, Hublli |
| 2) | (Rep. by Sri. M.S.Ramenahalli, Advocate) Mahindra Finance Mahindra and Mahindra Financial Services Ltd., 1st Floor, Shrinivas Enclave Opp:B.V.B. College,
Vidyanagar, Hubli-580 011. (Rep. by Sri. S.S.Kori, Advocate) |
JUDGEMENT
JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER
The complainant has filed the complaint U/Sec. 35 of C.P Act, 2019, to direct the OP No.1 to pay Insurance amount to comply vehicle loan due amount of Rs.34,90,000/- and direction to issue no due certificate with cost.
2. The brief facts of complaint are as under:
Son of the complainant No.1, late Parashuram. Tuggani purchased a Hyundai Hydraulic Excavat, who later died on 21.03.2020 complainants are legal representative of Parashuram. At the time of purchasing the vehicle, Parashuram borrowed a loan of Rs.42,00,000/- from Op No.2 and got insured with Op No.1 as shown in the schedule para No.3. Parashuram, paid Rs.7,10,000/- to Op No.2 and remaining balance of Rs.34,90,000/- is due. Op No.2 demanded the complainants to pay the remaining amount. Subsequently Parashuram died on 21.03.2020 as per terms of the conditions all claims must be notified within three months from the date of death. Accordingly, complainants being legal representative of Parashuram, submitted claim petition with relevant documents to OP No.1. But, Op No.1 has rejected the claim. Therefore, complainant got issued Legal notice on 31.12.2020, but no reply is given by OP No.1. So, Ops have committed the deficiency of service. Hence, filed this complaint.
3. After admitting the complaint, notice was issued to the OPs, who appeared through their counsels and filed their written versions.
4. The brief facts of written version of OP No.1 is as under:
The OP No.1 denied the contents of the complaint and contended that, insurance has been obtained fraudulently by misrepresentation. Upon receipt of death claim intimation, immediately they initiated the process of investigation and certain facts were discovered. Medical certificates reveals that features are suggestive of Diffuse Large B cell lymphoma-not otherwise specified and other medical certificates issued by KLES Hospital reveals that, K/C/O DLBCL for initial staging Hypermetabolic homogenously enhancing few enlarged cervical lymph nodes on right side as described above. Discharge summary reveals that, Diagnosis as C/o DLBCL and history C/o neck Node and also noted that, CT shows K/C/O DLBCL for initial staging. Indoor case sheet issued by Halammakerudi cancer Hospital noted provisional diagnosis as DLBCL (Diffuse large B-cell lymphoma). Further, he was discharged against medical advice. So member was diagnosed with diffuse large B cell lymphoma (Cancer) and was suffering from the said disease prior to signing of the DOGH form. So member has himself intentionally declared that, he is medically fit to avail the cover by suppressing material facts. Therefore, repudiated the above claim of the complainants. There is no any deficiency of service committed by the OP No.1. Hence, prays for dismiss the complaint.
5. The brief facts of written version of OP No.2 is as under:
The OP No.2 admitted that, Parashuram had purchased vehicle by availing loan from OP, and later died. But denied having paid the amount of Rs.7,10,000/- and the remaining outstanding loan amount of Rs.34,90,000/-. Complainants being the legal heirs and representative of the estate of the deceased Parashuram, are liable to repay the said loan amount. There is no deficiency of service committed by the OP No.2. Hence, prays for dismissal of the complaint.
6. To prove the case, the complainant No.2 has filed affidavit and examined as PW-1 and got the documents marked as Ex.C-1 to Ex.C-8. Shri. Manjunath Annigeri for OP No.1 was examined as RW-1 and got marked the documents as Ex.OP-1 to Ex.OP-11. OP No.2 has not chosen to file affidavit evidence.
7. Heard the argument on both sides.
8. The points for consideration are,
1. Whether the complainants prove the deficiency of service committed by the Opponents?
2. Whether the complainants are entitled for the reliefs
as sought for?
3. What order?
9. Our findings on the above points are as under:
Point No 1. In the affirmative.
Point No 2. In the partly affirmative.
Point No 3. See final order.
REASONS
10 .Point No.1 and 2: The point No.1 and 2 are taken together to avoid the repetition of facts. The learned counsel for complainants argued that, as per evidence of PW-1 and Ex.C-1 to Ex.C-8 complainants proved the deficiency of service committed by the OPs. The learned counsel for Op No.1 argued that, policy is repudiated due to false declaration filed and suppressing the material facts. The learned counsel for op No.2 argued that, no deficiency of service is committed and complainants are liable to pay the loan amount.
11. On careful perusal of all the documents and materials placed before the commission, complainant No.2 filed affidavit and was examined as PW -1 and he has reiterated the contents of complaint. PW-1 has stated that, he is Son of the complainant No.1, and brother of late Parashuram. Prasuram Tuggani purchased Hyundai Hydraulic Excavat, who later died on 21.03.2020 complainants are legal representative of Parashuram. At the time of purchase of vehicle, Parashuram borrowed a loan of Rs.42,00,000/- from Op No.2 and got vehicle insured with Op No.1 as shown in the schedule para No.3. Parashuram, paid Rs.7,10,000/- to Op No.2 and remaining balance of Rs.34,90,000/- is due. Op No.2 demanded the complainants to pay the remaining amount. Subsequently Parashuram died and as per terms of the conditions all claims must be notified within three months from the date of death. Accordingly, complainants being the legal representatives of Parashuram, submitted claim petition with relevant documents to OP No.1. But, Op No.1 has rejected the claim. Therefore, complainant got issued a Legal notice on 31.12.2020, but no reply was given by the OP No.1. So, Ops have committed the deficiency of service.
RW-1 has filed affidavit and reiterated the contents of the written version filed by OP NO.1. RW-1 has stated that, Insurance Cover has been obtained fraudulently by misrepresentation. Upon receipt of death claim intimation, immediately initiated the process of investigation and certain facts were discovered. Medical certificates reveals that features are suggestive of Diffuse Large B cell lymphoma-not otherwise specified and other medical certificates issued by KLES Hospital reveals that, K/C/O DLBCL for initial staging Hypermetabolic homogenously enhancing few enlarged cervical lymph nodes on right side as described above. Discharge summary reveals that, Diagnosis as C/o DLBCL and history C/o neck Node and also noted that, CT shows K/C/O DLBCL for initial staging. Indoor case sheet issued by Halammakerudi cancer Hospital noted provisional diagnosis as DLBCL (Diffuse large B-cell lymphoma). Further, he was discharged against medical advice. So member was diagnosed with diffuse large B cell lymphoma (Cancer) and was suffering from the said disease prior to signing of the DOGH form. So member has himself intentionally declared that, he is medically fit to avail the cover by suppressing material facts. Therefore, repudiated the above claim of the complainants. There is no deficiency of service committed by the OP No.1.
12. At the very outset, Ops have admitted that, deceased Parashuram borrowed a loan of Rs.42,00,000/- from Op No.2 and purchased the Hyundai Hydraulic Excavat and got insured with Op No.1 for a sum assured amount of Rs.42,00,000/- and also the death of Parashuram and the complainants are legal representatives. The main contention of Op No.1 is that, Parashuram fraudulently submitted declaration and suppressed the material facts. Parashuram was suffering from Diffuse Large B cell lymphoma (Cancer) much prior to availing the said insurance cover thereby repudiated the claim of complainants. Ex.C-1 repudiation letter, Ex.C-2 letter issued by Op No.2 to pay the outstanding amount, Ex.C-4 death certificate, Ex.C-5 survival certificate, Ex.C-6 legal notice issued by the complainants, Ex.C-7 certificate of insurance and Ex.C-8 Life cover schedule are not disputed by the Ops. Ex.Op-1 Zerox copy of membership form of Parashuram, Ex.OP-2 Insurance certificate, Ex.Op-3 Life cover schedule, Ex.Op-4 death claim and Ex.OP-11 repudiation letter issued by Op No.1 are also not disputed by the parties.
13. It is the duty of Op No.1 that the documents produced must be proved by adducing cogent evidence regarding the ground of concealment of pre-existing ailment of the deceased parashuram, Ex.Op-5 Zerox copy of Histopathology report issued by S. Nijalingappa Medical college and HSK, Hospital and research Centre Bagalkot, dtd:24.05.2019 reveals that, Parashuram took the treatment, Clinical diagnosis, Cervical lymphadenopathy have given the opinion that features are suggestive of Diffuse large B-Cell lymphoma not otherwise specified ICD-O Code-9680/3, Ex.OP-6 Medical report issued by KLES Hospital, wherein Parashuram took the treatment as per patient No.169019 on 17.06.2019 and below seal of the Kerudi Health care Pvt. Ltd. Bagalkot, can be seen Ex.Op-7 final Chemotherapy discharge summary patient and scheme information issued by Kerudi, Hospital, Ex.Op-8 Indoor case sheet issued by Halamma Kerudi Cancer Hosptial, Ex.Op-9 investigation report, Ex.OP-10 affidavit of Sharad Naik partner of Ineffable Innovative investigators LLP. Op No.1 relied on medical documents and investigation report Ex.OP-5 to Ex.OP-10 and came to the conclusion that, Parashuram was suffering from Diffuse Large B Cell Lymphoma (Cancer) much prior to availing said insurance cover and fraudently submitted the declaration by suppressing the material facts. Ex.OP-5 to Ex.OP-10 are all zerox copies which are submitted under their own seal and OP No.1 has not produced the originals of any exhibits i.e. Ex.Op-5 to
Ex.OP-10 nor they have examined the author of the i.e. Doctors and Investigators. The Ops have simply submitted the zerox copies, Op contends that the deceased was suffering from cancer then the burden is upon the Ops to prove their case which they have failed to do so. Without producing original documents and examining the experts who issued the certificates of investigation contention of Op No.1 cannot be accepted and believable. In the absence of, adducing cogent evidence, the ground of concealment of pre-existing ailment by deceased cannot be accepted. Mere, pleading the grounds for repudiating the claim in the written version, without producing original documents nor examining the doctors or investigators, the relief of the complainants cannot be rejected.
14. The learned counsel for complainants are relying on a decisions in Sunita Goyal V/s Bajaj Allianz Life Insurance, 2018 (1) CPR 167 (NC) in Allauddin V/ Kotak Mahidra Old Life Insurance, 2017 (3) CPR 520 (NC), in SiddhanthKhare V/ Branch Manager SBI Life Insurance and Smt. Sunita V/s HDFC Standard Life Insurance Co., Ltd., and another, and IV (2011) CPJ 6 (P. Venkata Naidu V/s LIC of India, 2017 (2) CPR 658 (LIC of India V/s Sarojini and another, wherein, Hon’ble NCDRC, New Delhi, held that, U/Sec. 45 of Insurance Act, claim can be repudiated, if, it is proved that, assured knowingly and fraudulently suppressed the material facts. Contractual duty on the insured is such that, any suppression untruth in proposal form will be considered as a breach of the duty of good faith will render the policy voidable by the insurer and also held that, ground of concealment of preexisting ailment by deceased must be proved by insurance Co., by adducing cogent evidence.
Facts, circumstances and ratio of the above decisions are aptly applicable with case on hand as, Op No.1 failed to prove by adducing cogent evidence.
15. Further relying in civil Appeal No.8386/15 dtd: 06.12.2021 Hon’ble Supreme Court of India held that, “the object of seeking Medi-claim policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent which may occur if the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy. A duty is caste on the insurer to indemnify the complainant for the expenses incurred thereon”.
Further, Hon’ble Supreme Court of India, Hon’ble NCDRC, in various cases and held that, hypertension and diabetes are not at all deceases.
Facts, circumstances and ratio of the above decisions are aptly applicable with case on hand as, Op No.1 failed to prove by adducing cogent evidence that, deceased died due to not sudden illness or sickness.
16. In the written version Op No.1 is relying a decisions, Export Credit Guarantee Corporation of India Ltd V/s Garg Sons International 2013 (1) Scale 410, P.C, Chacko and Anr. V/s Chairman, LIC India & Ors. Reported AIR 2008 SC 424, AIR 1991 SC 392 in LIC of India V/s Smt. G.M.Channabasamma, the National Commission in the case reported in 2011 titled Life Insurance Corporation of India V/ Kusum Patro, on careful reading of the above decisions Hon’ble Supreme Court held that, while construing the terms of the contract of insurance, the court must give paramount importance to the terms used in the said contract and it is not open for the court to add, delete any words with due respect of the above ratio, Court or Commission give importance to the terms of the conditions of the policy. However, facts of the circumstances of the above decisions are not applicable with case on hand, as Op No.1 failed to prove the pre-existing disease.
As per the decision reported in II (2022) CPJ 414 (NC) Aditya Birla Sun Life Insurance Company Ltd. V/s Kusum Devi. Wherein it is held that:-
“C. (ii) Consumer Protection Act, 1986 – Sections 2 (1) (g), 14 (1) (d), 21 (b)- Insurance – Death of insured – Alleged Non-disclosure of income truthfully – deficiency in service – Repudiation of claim – District Forum allowed complaint”. |
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(2022) CJ 236 (NC) in PNB Metlife India Insurance Co., Ltd. V/s Gurbaaj Singh. It is held that a bona fide insurance claim cannot be repudiated on ground of concealment of pre-existing disease. |
On careful reading above decisions facts circumstances and ratio is aptly applicable to case on hand.
As per decision, Civil appeal No.407/2022 dtd:20.05.2022, in Gurmelsingh V/s The Branch Manager National Insurance Company. Ltd., Wherein, it is held that;
“While settling the claims, insurance company should not seek documents which are beyond the control of insured to furnish”.
Further, held that, insurance company should not be to technical and ask for the documents, which, the insured is not in position to produce due to circumstances beyond his control. It is found that the insurance companies are refusing the claim on flimsy grounds and on technical grounds”.
The facts, circumstances and ratio of the above decision is aptly applicable to case on hand, as insurance company repudiated the claim on flimsy grounds.
17. Further, ILR 2007 Karnataka 602 in Huchappa and Another V/s Union of India and others. Wherein, it is held that, the condition imposed by the insurance company while assuring the life of the policy holders to forfeit the amount if the premium is not paid for full three years, will be detrimental to the interest of the common man and it will be in clear violation of the Articles 21, 38, 39 of the constitution. The implied condition of forfeiture clause provided under condition No.4 by the authorities in the insurance policy is held to be void and without any basis. Direction is issued to the authorities to return premium amount paid by the discontinued policy holders if the policy is not renewed.
Insurance Sec.2 (g) C.P.Act-1986 deficiency in service solely on the ground that the original certificate of registration (which has been stolen) is not produced, non-settlement of claim can be said to be deficiency in service para No.4.
The facts, circumstances and ratio of the above decision is aptly applicable to case on hand, as insurance company repudiated the claim on the sole ground, imposing one side condition in respect of
pre-existing ailment without proving the cogent evidence.
18. At the cost of repetition, it is said that, the object seeking Medi-claim and Medical Insurance is to sick indemnification of the illness. Even the insurance companies provide insurance for pre-existing medical decease after some waiting period. In view of the repudiation of the claim shows the high handedness of the Op No.1 which has no concern at all to the ailing patients from whom the insurance companies are receiving and surviving.
19. Op No.2 Mahindra Finance services Ltd., is the policy holder and it is a group insurance and deceased is one of the insured members it becomes the bounden duty to claim the assured amount from Op No.1 i.e. Kota Mahindra Life Insurance Company. Instead of making any such efforts Op No.2 is repeatedly demanding the complainants to pay the entire loan amount of Rs.42,00,000/-. Even Op No.1 denied a sum of Rs.7,10,000/- paid by deceased towards the said loan.
20. For the above, reasons, the complainant has proved that OPs have committed deficiency of service and is entitled for the relief. Complainants have suffered a lot due to demand made by Op No.2 to pay the entire loan amount and also policy repudiated by Op No.1 without reasonable grounds, they are entitled a sum of Rs.5,000/- to each complainant towards mental agony and Rs.2,000/- to each towards cost of the litigation. Accordingly, we answer point No.1 in affirmative and point No.2 partly in affirmative.
21. Point No.3:- In the result, we proceed to pass the following:
ORDER
1. The complaint filed U/Sec. 35 of the consumer Protection Act, 2019 is hereby partly allowed.
2. Op No.1 is directed to settle the entire outstanding balance loan borrowed by the deceased Parashuram Shivappa Tuggani from Op No.2 with accrued interest and other charges thereon within two months from the date of this order. After the entire loan transaction is settled the Op No.2 is directed to issue no due certificate within one month.
3. Further, Op No.1 is directed to pay the complainants Rs.5,000/- each, towards mental agony and Rs.2,000/- each towards cost of litigation within a period of two months from the date of this order.
4. Office is directed to send the copies of this order to the parties free of cost.
(Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Commission on this 7th Day of
December-2022)
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(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
-: ANNEXURE :-
EVIDENCE ON BEHALF OF COMPLAINANT/S:
PW-1: Hullappa S/o Shivappa Tuggani
DOCUMENTS ON BEHALF OF COMPLAINANT/S
Ex.C-1 : Repudiation letter
Ex.C-2 : Letter issued to complainant No.2.
Ex.C-3 : certified copy of order sheet CC No.01/21.
Ex.C-4 : Death certificate.
Ex.C-5 : LRs certificates.
Ex.C-6: Legal notice.
Ex.C-7:Certificate of Insurance.
Ex.C-8: Life cover schedule.
EVIDENCE ON BEHALF OF OPs:
RW-1 : Manjunath S/o Yallappa Annigeri,
DOCUMENTS ON BEHALF OF OPs
Ex.OP-1 : Membership form Cum Declaration of Good Health
Ex.OP-2 : Certificate of insurance.
Ex.OP-3 : Life Cover Schedule.
Ex.Op-4 : Letter for Death Claim of Mr. Parashuram S. Tuggani.
Ex.Op-5 : Department of Pathology, Histopathology report.
Ex.OP-6 : Medical report of Mr. Parashuram S.Tuggani.
Ex.Op-7 : Final Chemotherapy Discharge Summary.
Ex.OP-8 : Indoor case sheet.
Ex.OP-9 :Investigation Report.
Ex.OP-10 : Affidavit.
Ex.OP-11: Letter issued to complainant dtd:30.10.2020.
(Shri Raju N. Metri) (Shri. D.Y. Basapur) (Smt.Yashoda Bhaskar. Patil)
MEMBER PRESIDENT WOMAN MEMBER
