West Bengal

Bankura

CC/96/2023

Sanaka Roy - Complainant(s)

Versus

Kotak Mahindra Life Insurance Co Ltd - Opp.Party(s)

Ardhendu Sekhar Ghosh

14 Mar 2024

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA 

  Consumer Complaint No. 96/2023

                                                      Date of Filing:  13 /10/2023                                                

Before:                                        

1. Samiran Dutta                            Ld. President.      

2. Siddhartha Sankar Bhui            Ld. Member. 

 

For the Complainant:  Ld. Advocate  Ardhendu Sekhar Ghosh

For the O.P. No.1: Ld. Advocate Sandip Chakraborty

For the O.P. No.2: Ld. Advocate Biswajyoti Chattaraj

 

Complainant  

Sanaka Roy,W/O-Late Jiten Roy,Vill-Latiaboni, P.O&P.S-Gangajalghati,Dist-Bankura,Pin-722133,Mob-7908513168

Opposite Party                                                                  

1. Kotak Mahindra Life Insurance Co Ltd.,2^nd Floor,Plot#C-12,G Block,BKC,Bandra(E)Mumbai-400051
2. GIC Housing Finance Ltd.,MNAV-20 Bengal Ambuja Housing Complex, North avenue,Ground Floor,Opposite Water Tank & Kali Mandir City Centre, Durgapur-713216

 

FINAL ORDER / JUDGEMENT

Order No.06

Dated: 14-03-2024

Both parties file hazira through Advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that her husband Late Jiten Roy being the employee of (Mejia Thermal Power Station) MTPS, DVC, Bankura purchased one Life Insurance Policy namely Kotak Group Assure(Product UNI.107N051V03) vide Certificate No.G.A.000033WB0460610002076-15532139 valid from 17/01/2017 to 16/01/2031 after making a one time payment of Rs.50,670/- covering the total loan amount of Rs.16,55,195/- which he took from O.P. No.2/Financer for construction of house under Loan A/c WB0460610002076 on the terms and condition of the Policy to the effect that in the event of death of the Insured the Nominee i.e. the Complainant will get the sum assured value of Rs.16,55,195/-.  On 18/12/2019 said Jiten Roy died a natural death at MTPS Hospital, Durlovpur. Death intimation together with claim application was duly forwarded to the O.P. No.1/Insurance Co. for payment of death benefit claim of Rs.16,55,195/- but the same was repudiated by letter dt.25/03/2020 on the ground of suppression of material fact as to the pre-existing disease of the Insured. The Complainant has therefore approached this Commission for appropriate relief.

                                                                                                                                                                                      Contd……p/2

Page:2

O.P. No.1/Insurance Co. contested the case by filing a written version and also filed Brief Notes of Argument reiterating the same ground of repudiation of claim.

O.P. No.2 also filed a written version to contest the case.                                                                       

                                                                                     -: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents on both sides the Commission finds that the Insured Jiten Roy expired on 18/12/2019 when the Policy commencing from 17/01/2017 was valid and in force. Claim application was preferred on 13/01/2020 and the claim was repudiated by letter dt.25/03/2020. The ground of repudiation of claim as is evident from the said letter is that the Insured was suffering from non-ischemic dilated cardiomyopathy and placed with CRT device with Type-2 Diabetes Mellitus prior to the commencement of the Policy and relying on the Discharge Summary issued from Mission Hospital, Durgapur dt.21/06/2016 and the Death Certificate issued from D.V.C. Hospital dated: 18/12/2019 and all other information and documents procured during the assessment of the said claim O.P. No.1/Insurance Co. was pleased to repudiate the claim on the ground of fraud for non-disclosure of above mentioned pre-existing disease by invoking Section 45 of the Insurance Act, 1938. The Policy was issued by the O.P. No.1/Insurance Co. in favour of the life insured Late Jiten Roy on the basis of Declaration of Good Health (DOGH) entered into by and between the O.P. No.2/Financer and the Life Insured. So DOGH is the part and parcel of the terms of the Policy where the life insured has declared that he has never suffered inter alia from diabetes.

Ld. Advocate appearing for the O.P. No.1/Insurance Co. has relied upon Clause-10 of the terms and condition of the Policy which provides that in case of fraud or misrepresentation by the member the certificate of Insurance (COI) shall be cancelled immediately by paying the Surrender Value subject to the fraud or misrepresentation being established by the Insurer in accordance with Section 45 of the Insurance Act, 1938 and contended that the Complainant is not entitled to the death benefit claim as prayed for as there has been a breach of the terms and condition of the Policy of suppression of material fact and misrepresentation with regard to the pre-existing disease of the life insured. What the Complainant will get is at best the Surrender Value as per terms and condition of the Policy.

Ld.  Advocate for the Complainant has however submitted before the Commission that without cancellation of the Policy which was valid from 17/01/2017 till the death of the Life insured on 18/12/2019 O.P. No.1/Insurance Co. cannot deny the death benefit claim on such ground.

Admittedly the Policy in question is valid till the death of the Life insured on 18/12/2019 but  it has not been cancelled during that period in accordance with Sec. 45 of Insurance Act, 1938. Now the question is whether the claim of the Complainant can be repudiated on such ground without cancellation of the Policy. In this connection the Commission likes to refer relevant portion of Section 45 of the Insurance Act, 1938 which reads as follows: -

                                                                                                                                                                                          Contd……p/3

Page: 3

Section 45: Policy not to be called in question on the ground of mis-statement after three years – 

(1) No policy of life insurance shall be called in question on any ground whatsoever after the expiry of three years from the date of the policy, i.e., from the date of issuance of the policy or the date of commencement of risk or the date of revival of the policy or the date of the rider to the policy, whichever is later. (2) A policy of life insurance may be called in question at any time within three years from the date of issuance of the policy or the date of commencement of risk or the date of revival of the policy or the date of the rider to the policy, whichever is later, on the ground of fraud: Provided that the insurer shall have to communicate in writing to the insured or the legal representatives or nominees or assignees of the insured the grounds and materials on which such decision is based. 

In this case alleged fraud of concealment of pre-existing disease is brought on record by the O.P. No.1/Insurance Co. for the first time only by way of repudiation of the claim by letter dated: 25/03/2020 which is after three years of the date of commencement of the Policy i.e. 17/01/2017 and as such repudiation of claim is thus time barred u/s 45 of the Insurance Act, 1938.

The Commission further finds that Clause-10   of the terms and condition of the Policy as referred to above is applicable only for cancellation of the Policy. But no such step or process has been initiated by the O.P. No.1/Insurance Co. with communication in writing to the Nominee (Complainant) as provided in Section 45 (2) of the Insurance Act, 1938 while the Policy was valid and in force. Section 45 cannot be applied to this case after the policy ceases to be in force on the death of the Life insured and the relief or claim as prayed for  in this case can only be repudiated after cancellation of the Policy in question in accordance with Section 45 of the Insurance Act. Thus the O.P. No.1/Insurance Co.  has lost/missed the right and opportunity to cancel the Policy during the lifetime of the Insured and as such they cannot at this stage defeat the genuine death benefit claim of the Complainant by relying on the materials of pre-existing disease of the Life insured. Moreover, the Policy document does not provide any exclusion Clause for repudiation of death benefit claim on the ground of pre-existing disease.

So considering the entire facts and circumstances of the case, the terms and condition of the Policy and the legal issue involved thereto the Commission is of the view that the O.P. No.1/Insurance Co. has no locus standi to repudiate the death benefit claim of the husband of the Complainant as prayed for without cancellation of the Policy. 

Hence, it is ordered……..

That the case be and the same is allowed on contest but without cost.

O.P. No.1/Insurance Co. is directed to pay to the Complainant Rs.16,55,195/- within 45 days from this date in default law will take its own course.

Both parties be supplied copy of this order free of cost.

 

 ____________________                _________________         

HON’BLE   PRESIDENT           HON’BLE MEMBER