Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                          Complaint No. : 241

                                                          Instituted on     : 02.04.2021

                                                          Decided on       : 09.10.2023

Shri Bhagwan son of Ram Chander, resident of House No. 87/29, Jasbir Colony, Rohtak.

                                                                             ………..Complainant.

                                      Vs.

Kotak Mahindra Life Insurance Company Ltd., Office at Subhash Road, First Floor, No. 5, Scheme No. 19, Subhash Road, Subhash Park, opposite All India Radio, Rohtak through its Divisional Manager.                                                                                                                                    ............…….Opposite party.

COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR.VIJENDER SINGH, MEMBER.

Present:       Sh. Karan Chander Bhardwaj, Advocate for complainant.

Sh. Gulshan Chawla, Advocate for the opposite party.

                                                ORDER

NAGENDER SINGH KADIAN PRESIDENT:

1.         Brief facts of the case as per complainant are that he had availed one Kotak life Insurance policy bearing no.09168250, date of commencement 12.03.2019, date of maturity 12.03.2034 for his son Deepak and the sum assured under this policy is Rs.6,62,283/-. At the time of availing of the said policy, complainant’s son had disclosed all the facts regarding his health etc. and the panel doctor of the opposite party on verifying and satisfying with the facts confirmed the same. It is further submitted that two installments of the policy were paid by the complainant to the tune of Rs.44422/- yearly each. On 05.07.2020, son of the complainant died and being nominee of the deceased, complainant intimated to the opposite party about the death of his son. He also submitted all the documents as required by the opposite party. The official of the opposite party assured the complainant that they will disburse the claim amount within short period. The complainant contacted to the office of the opposite party personally and through email many a times to get the claim amount but the official of the opposite party not gave any response. It is further submitted that on 18.02.2021, the opposite party issued a letter alleging therein illegal and arbitrary facts and only refunded an amount of Rs.85020/- through NEFT to the complainant. The act and conduct on the part of the opposite party is highly illegal  and there is deficiency on the part of the opposite party. Hence, the present complaint and it is prayed that opposite party may kindly be make the payment of the claim amount of Rs.662283/- alongwith interest and all other accured benefits under the policy to the complainant. It is also prayed that opposite party be also directed to pay an amount of Rs.2,00,000/- as compensation and Rs.22,000/-as litigation expenses to complainant.

2.                After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has denied that the DLA has disclosed about his health condition in the proposal form. It is also denied that the policy was issued after medical examination and they did not find any discrepancy in the health of DLA. The medical examination conducted by the insurer are only of a preliminary nature. If a person suffers from latent diseases like cancer, this will not get revealed at the time of a preliminary medical examination. If the person is under regular medication for the same, the latent disease are either suppressed or temporarily brought under control. Only if the person being examined reveals about the diseases he is suffering from and the fact that he is under medication for the same. Doctor/company will come to know about it and the correct prognosis of the case and assess the risk accurately. It is further submitted that during the assessment of the subject claim in accordance with the medical documents submitted by the policyholder, it was discovered that the deceased life assured was a known case of ALD with UGI bleed with liver cirrhosis since 1 year prior to the date of death and had concealed this material fact.  It is evident that despite having the complete information of medical condition, the deceased intentionally withheld the material information from the company. Further it is stated that if the deceased member had revealed his past medical ailment relating to his health condition regarding ALD with UGI bleed with liver cirrhosis since 1 year prior to the date of death, the company would not have provided the subject life cover. After careful consideration of the documents received from the policyholder, the company had settled the claim with respect to payment of premium amounting to Rs.85,020/- and accordingly, the company had issued a settlement letter dated 18.02.2021 stating therein that the facts of investigation which clearly proved that there has been non-disclosure of material facts pertaining to deceased member’s past medical history prior to availing the subject life cover. The complainant in his entire complaint has not rebutted the factum of treatment being undergone by the life assured from PGIMS, Rohtak and the same amounts to admission on the part of complainant and the complainant has not denied the factum of receipt of payment of Rs.85020/-. Hence the complainant’s claim under the subject policy was rightly settled due to non-disclosure of material information and consequently the claim under the policy in question has been settled by the company on the ground of illness prior to life cover issuance. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs

3.                 Learned counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C10 and has closed his evidence on dated 14.07.2022. Learned counsel for the opposite party has tendered affidavit Ex. RW1/A, documents Ex.R1 to Ex.R6 and closed his evidence on 01.12.2022.

4.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                In the present case, the claim of the complainant has been repudiated on the ground that the deceased has pre existing disease at the time of his death. As per respondents, the respondents officials and Dr.M.S. Kamath has minutely perused the Bed Head Ticket of the deceased which has been issued by PGIMS, Rohtak and after going through the old treatment record they came into the conclusion  that deceased have the history of, :  “Short stay file issued from Pt. B.D.Sharma, Post Graduate Institute of Medical Sciences, Rohtak having date of admission as 03.07.2020 and Date of death as 05.07.2020 which clearly mentions history and examination as “ k/c/o of ALD and UGI bleed, cirrhosis since 1 year’, Past History as ‘suffering from jaundice since 1 year”, “Medical Certificate of cause of death issued from Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak dated 05.07.2020 which mentions immediate cause of death as Massive Hematemesis and Antedcedent cause is ALD with decompensated cirrhosis with UGI bleed”. It  has  also  been mentioned by the treating doctor in the treatment file that the deceased was  suffering from liver cirrhosis and jaundice since one year prior to the date of death.  After that the insurance  company filed  an  affidavit of  Sh.  Shakil  Ahmad Ex. RW1/A on  behalf of  company  some   more  additions  have been  made in this  affidavit  that  the deceased  was a chronic smoker since 12 years and chronic alcoholic since 12 yrs. We have minutely perused the documents placed on record by the  insurance company but the fact that  deceased was chronic smoker and chronic alcoholic since 12 years has not been mentioned anywhere in the bed head ticket or in the treatment file. In history  & examination attached with Ex.R4, it is written as one year instead of 12 years. The false and fabricated ground has been taken by the insurance company . In fact the policy has been issued on dated 12.03.2019 and first premium was paid on that day. Second premium was paid in the month of March 2020. The deceased was admitted in the PGIMS Rohtak on 02.07.2020 and died on 05.02.2020. The main question  arises before the Commission is that whether the deceased was suffering from any pre-existing disease at the time of inception of the policy. The perusal of documents shows that deceased was suffering from liver cirrhosis and jaundice since one year and so it has not been mentioned anywhere that deceased was suffering from any disease more than one year. Moreover the respondent insurance company placed on record an opinion of Dr.M.S.Kamath and tried to justify that disease of liver cirrhosis took at least 5 years to develop in a person and reach in the serious condition but the insurance company failed to place on record any medical references with literature to prove the fact that it takes 5years to develops liver cirrhosis in a healthy person.Hence a wrong plea has been taken and it cannot be believed. Through this complaint complainant has demanded a sum of Rs.662283/- against the policy. We have minutely perused the policy. In fact perusal of the policy shows that guaranteed maturity benefits in the policy is Rs.662283/- but the basic sum assured is Rs.357065/-. In the present case life assured had died and he is entitled for the basic sum assured Rs.357065/-. It is not disputed by the complainant that he had already received an amount of Rs.85020/-. The present complaint has been filed by the father of the deceased but perusal of document Ex.R2 itself shows that deceased was a married person. He has 2 minor children and his spouse and mother is also alive. Copies of Aadhar Card of Smt. Usha mother of deceased(Deepak) as ‘Annexure-JN-A’, Smt. Meenu wife of deceased as ‘Annexure-JN-B’, Harvansh minor son of deceased as ‘Annexure-JN-C’ and Purvi  minor daughter of deceased as ‘Annexure-JN-D’ are placed on record. As such opposite party is liable to pay the basic sum assured Rs.357065/- less already paid amount of Rs.85020/- i.e. to pay Rs.271045/-.

6.                In view of the facts and circumstances of the case we hereby allow the compliant and direct the opposite party to pay the amount of Rs.271045/-(Rupees two lac seventy one thousand and forty five only) alongwith interest @ 9% p.a. from the date of filing the present  complaint i.e. 02.04.2021 till its realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the L.Rs of deceased i.e. 40% to Smt. Meenu wife of deceased Deepak, 20% to Smt.Usha  mother of deceased Deepak, 20% to Harvansh minor son of deceased and 20% to Purvi  minor daughter of deceased in equal share. The amount of minor son Harvansh and minor daughter Purvi shall be deposited in any nationalized bank in the shape of FDR till the date of attaining the age of majority. Order shall be complied within one month from the date of decision.

7.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

09.10.2023

                                                          ................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Tripti Pannu, Member.

                                                          ………………………………….

                                                          Vijender Singh, Member.