Chandigarh

DF-II

CC/1167/2019

Pranav Arora - Complainant(s)

Versus

Kotak Mahindra Life Insurance Company - Opp.Party(s)

Adv. G.S.Sawhney

25 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	1167/2019
Date of Institution	:	10.12.2019
Date of Decision	:	25.09.2023

 

                     

            

 

Pranav Arora s/o late Sh.Rajiv Arora r/o H.No.1037, Sector 38-B, Chandigarh.

                 ...  Complainant.

Versus

1.  Kotak Mahindra life Insurance Company, Regd. Office Second Floor, Plot No.C-17, G-Block, BKC Bandra (East), Mumbai-400051.

Corporate Office: 7^th Floor, Building No.21, Infinity Park Off Western Express Highway General A.K.Vaidya Marg, Malad (East), Mumbai through Mr.Jacob Nandam Deputy Vice President Claims Department.

2.  Kotak Mahindra Prime Ltd., Car Finance Chandigarh Plot No.57, 6^th Floor, Industrial Area, Phase-I, Chandigarh-160002 through its Branch Manager.

…. Opposite Parties

 

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI S.K.SARDANA	MEMBER
Present:-
	Sh.G.S.Sawhney, Counsel for the complainant Sh.Mrigank Sharma, Counsel of OP No.1 Sh.Sukhbir Singh, Counsel of OP No.2

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.), LLM,PRESIDENT

1. The complainant, who is nominee under the policy of the deceased -Rajiv has filed the present complaint under Section 12 of the Consumer Protection Act, 1986, as amended up-to-date alleging therein that the deceased Rajiv Arora (LA) Policy took the Policy known as Kotak Group Shield (Annexure C-1) who died on 25.11.2017 (Annexure C-2). The LA got financed the Hyundai car vide agreement dated 31.08.2017 (Annexure C-3) for an amount of Rs.6,13,231/-. The OP had also issued the policy for Rs.3.00 lacs (Rupees Three lacs) without ascertaining any details from the father of the complainant and as per the clause of the policy, the benefits under the policy first was towards the loan outstanding by paying directly to the policy holder and the balance if any, be paid to the LA or his nominee but the same has not been paid till date by the OP and on representation, the same was rejected vide letter dated 16.02.2018 (Annexure C-4) on the ground that the deceased was suffering from diabetes mellitus, hypertension, alcoholic liver disease and was under the treatment for the same prior to signing the declaration of good health. It has been averred that it was the duty of the OP to have asked for the medical certificate from the deceased or could have asked him to submit the fitness certificate from the doctor so as to come to the conclusion that whether the policy was to be given or not.  It has been averred that the claim was wrongly and illegally rejected by the insurance company. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to pay the interest on the amount deposited by way of installments as being deducted by the OPs and to settle and give the policy in the name of the complainant along with the compensation to the tune of Rs.5.00 lacs as compensation for mental agony and physical harassment as well as litigation expenses.
2. After service upon OP No.1, they appeared before this Commission and filed their written stating therein that OP No.2 took Group Life Insurance Policy under “Kotak Complete Cover Group  Plan known as Master policy and the entity obtaining it is known as Master policyholder.  It has further been stated that the LA–Rajeev Arora took loan facility from OP No.1 and thus submitted in capacity of his being a borrower of “Master Policyholder” to become assured further he submitted DOGH on 30.08.2017 and on the basis of which the certificate of insurance with reducing cover was issued to the LA as token of his life cover for claim amount of Rs.3.00 lacs. On receipt of the claim of the LA, the same was investigated and it was found that the deceased was under the treatment of diabetes mellitus, hypertension, alcoholic liver disease as per the medical certificate from PGIMER, Chandigarh (Annexure R-1/3) and the prescription slip dated 06.06.2016 (Annexure R-1/4) of Dr.B.S.Bhatia, Bhatia Heart and Diabetes Center and the same were not disclosed which is clear violation of the terms and conditions of the policy and as such the claim was rightly repudiated vide letter dated 16.02.2018 (Annexure R-1/5)
3. After service upon OP No.2, they appeared before this Commission and filed its separate written statement admitting the factual matrix of the case.  However, it has been stated that since no relief has been claim qua it and as such the complaint deserves to be dismissed qua them.
4. The parties have placed on record documents by way of affidavits in support of their case.
5. We have heard the Counsel for the contesting parties and have gone through the documents on record.
6. It is an admitted fact that the father of the complainant namely Sh.Rajeev Arora (Life Assured) was a member of the Master Policy  known as Group Life Insurance Policy under Kotak Complete Cover Group, obtained by OP No.2 from OP No.1 for sum assured of Rs.3,00,000/- from the OPs,  under Loan Ac No.14777340 with date of commencement as 31.08.2017 and the complainant (his son) was nominee under the above said policy.  So, the complainant being beneficiary of the above said policy is consumer of the OP who are service providers in the present case.
7. Now the main issue in question is as to whether the claim of the complainant repudiated by OP No.1 is justified or not.
8. In order to find out answer to this question, it is observed that OP No.1 repudiated the claim of the complainant vide letter dated 16.02.2018 (Annexure R-1/5) on the ground that the LA was suffering from diabetes mellitus, hypertension, alcoholic liver disease and was under the treatment for the same prior to signing the declaration of good health. The main contentions of OP No.1 are that since the LA has concealed the factum regarding the pre-existing disease, so the claim was rightly been repudiated as per the terms and conditions of the insurance policy. On the other hand, the learned counsel of the complainant has repelled the aforesaid contention of OP No.1 on the ground that it was the duty of the OPs to have asked for the medical certificate from the deceased or could have asked to deceased to submit the fitness certificate from the doctor so as to come to the conclusion that whether the policy is to be given or not. 
9. The burden to prove the fact that the LA was suffering from pre-existing disease prior to signing the declaration form was upon OP No.1-insurance Company. No doubt, OP No.1-insurance Company has placed on record some test reports and prescription slip of the LA issued by Bhatia Heart and Diabetes Centre, Sector 35-C, Chandigarh as Annexure R-1/4 (Colly) but OP No.1 has neither summoned the concerned record nor examined the concerned doctor before this Commission to prove the same. Further, there is neither any affidavit of the concerned doctor in favour of OP No.1-insurance Company nor the investigation report carried out by the investigation team of the company has been placed on record. There is no affidavit of the treating doctor to establish that the deceased LA was suffering from pre-existing disease prior to the insurance policy. In the absence of any affidavit of the treating doctor of the concerned hospital to the effect that the LA suffered from the pre-existing disease prior to the taking the insurance policy, reliance cannot be made just on prescription slip and the test reports or passing reference in the notes of treatment, consequently it can be safely held that OP No.1 has failed to discharge the burden to prove that the LA was suffering from the pre-existing disease prior to the taking the insurance policy.  In New India Assurance Co. Ltd. Vs. Arun Krishan Puri, III(2009) CPJ 6 (NC), it was held that onus to prove the pre-existing disease of the insured at the time of taking the policy lay on the insurer. Further in the absence of verification of discharge summary by the doctor, who treated /issued the same, no reliance can be placed on it. In the absence of such evidence, the repudiation of the claim by OP No.1 cannot held to be justified.
10.       Further, the Hon’ble Supreme Court in the case Biman Krishna Bose Vs. United India Insurance Company, civil Appeal No.3438 of 1995, has held that that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.

        Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.3619 of 2013 – Satish Chander Madan Vs. M/s. Bajaj Allianz General Insurance Co. Ltd., decided on 11.1.2016 has held that “Hypertension is a common ailment and it can be controlled by medication – Claim was wrongly repudiated.”  

        Further, we draw support from Life Insurance Corporation of India Vs. Sushma Sharma II (2008) CPJ 213 wherein Hon'ble Punjab State Commission has held as under:-

    “So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

11.     We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that “maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease”.
12.      In such a situation, the repudiation made by the OP No.1-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

    “It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

13.     In view of the above discussion, it can be safely concluded that OP No.1-Insurance Company has committed deficiency in service by wrongly and illegally rejecting the claim of the complainant.
14.     Consequently, the present complaint deserves to be partly allowed and the same is accordingly allowed qua OP No.1. OP No.1 is directed to pay a lump sum Rs.3,00,000/- (Rupees Three lakhs only) to the complainant including compensation for harassment and mental agony as well as litigation expenses.
15. This order be complied with by OP No.1 within 90 days from the date of receipt of its certified copy, failing which they shall be liable to pay the interest @ 9% p.a. on the awarded amount from the date of repudiation of the claim till the date of its actual payment to the complainant.
16. The complaint qua OP No.2 stands dismissed.
17. The pending application(s), if any, stands disposed of accordingly.
18. Certified copies of this order be sent to the parties as per rules. The file be consigned.

Announced 25/09/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(S.K.SARDANA) MEMBER