Haryana

Kurukshetra

206/2018

Sonia Devi - Complainant(s)

Versus

Kotak Mahindra - Opp.Party(s)

Vivek Saini

20 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                        Consumer Complaint No.206 of 2018.

                                        Date of instt.:27.9.2018. 

                                        Date of Decision:20.1.2020.

 

1. Sonia Devi (aged about 27 years) wife of late Shri Sanjeev Kumar;
2. Harman Saini (aged about 7 years) minor daughter of Shri Sanjeev Kumar;
3. Yuvaan Saini (aged about 1 year) minor son of Shri Sanjeev  Kumar;

Minors complainant No.2 and 3 through their mother – Sonia Devi -

4. Jogindro w/o Shri Kehar Singh (mother of deceased- Sanjeev Kumar)

All residents of village Kaserla, Tehsil Thanesar, District Kurukshetra.

 

                                                                …….Complainant.                                                    Versus

 

1. Kotak Mahindra Life Insurance Co. Ltd., Branch Kurukshetra through its Branch Manager.
2. Kotak Mahindra Life Insurance Co. Ltd., registered office: 2^nd Floor, Plot # C-12, G-Block, BKC, Bandra (E), Mumbai-400051 through its Managing Director.

        ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                                                   

Present:     Shri Vivek Saini, Advocate for the complainant.              

Shri Mohit Tayal, Advocate for the opposite parties. 

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Sonia Devi and another against Kotak Mahindra Life Insurance Co. Ltd., the opposite parties.

2.             The brief facts of the complaint are that the complainants No.2 & 3 are minors and are living under the care and custody of their mother complainant No.1. That the OPs have widely advertised to provide best services to their customers and to release the claim without any delay and harassment. On being attracted from the said advertisement, the husband of complainant No.1 purchased one policy bearing No.GA000035 (Loan Account No.PG/0421/C/16/000082) cover commencement date 22.12.2017 and cover Termination date 22.12.2022, type of policy Single Life, premium amount (exclusive of Gods and Services Tax and Cess) of Rs.8780.63 premium amount of Rs.10361.14, cover amount at inception Rs.10,50,000/- from the OPs. The husband of complainant No.1 died due to illness on 01.5.2018 at Arogyam Hospital, Kurukshetra. That the claim was filed before the OPs under the policy in question, but the OPs have repudiated the same vide letter dated 30.6.2018. The said letter is illegal, null and void and may kindly be set aside on the grounds that:

1.         The OPs have medically examined the deceased from their approved doctor prior to issuing the policy and found him hale and healthy and no disease was found at that time.
2.         That the OPs have fictitiously and vaguely alleged that the treatment record mentioned at Sr. No.1 to 7 in the letter dated 30.6.2018 issued by the OPs is procured, whereas all the medical documents record is genuine and valid.
3. That no personal hearing was given to the complainants by the OPs prior to rejecting the claim.

        That the Ops being insurer of Sanjeev Kumar are legally bound to make the payment of Rs.10,50,000/- to the complainants. By not paying their genuine claim, the OPs are deficient in providing the services. Hence, this complaint.

3.             Upon notice, the opposite parties appeared and filed written statement stating therein that the present claim is not payable and hence repudiated on the basis of intentional non-disclosure of material facts and false declarations made in the Declaration of Good Health (DOGH) by the deceased LA. The LA was diagnosed with Chronic Liver disease with splenomegaly and was undergoing treatment for the same much prior to signing of DOGH on 22.12.2017 from Adesh Medical College and hospital, Agarwal Nursing Home, Maharaja Agarsan Hospital and PGIMS Hospital. The complainant mislead the OPs into believing that he was medically fit to avail the said insurance covers by giving false declaration on DOGH regarding his medical history. Had the LA disclosed the information sought in a truthful manner, the OPs would not have issued the subject insurance cover to the LA/Member. The said intentional non-disclosure of the material facts goes to root of the matter vitiating the subject policy and rendering it invalid, void and unenforceable. The rest of the contents of the complaint are denied and prayed for dismissal the same.

4.             The complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-7. The learned counsel for OPs tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 to Ex.R-13. However, it is pertinent to mention here that during the pendency of the complaint, the applicant i.e. Magma Fincrop Ltd. moved an application under Order 1 Rule 10 CPC, which was dismissed vide order dated 16.1.2020 by this Forum.

5.             We have heard the learned counsel of the parties and carefully gone through the case file.

6.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that on being attracted from the advertisement of the OPs, the husband of complainant No.1 purchased one policy bearing No.GA000035 (Loan Account No.PG/0421/C/16/000082), type of policy Single Life, premium amount (exclusive of Gods and Services Tax and Cess) of Rs.8780.63 premium amount of Rs.10361.14, cover amount at inception Rs.10,50,000/- from the OPs. He further argued that the husband of complainant No.1 died due to illness on 01.5.2018 at Arogyam Hospital, Kurukshetra and thereafter, the claim was filed before the OPs, but the OPs have illegally repudiated the same vide letter dated 30.6.2018. He further argued that by not paying the genuine claim of the complainants, the OPs are deficient in providing the services.

7.             Contrary to it, the learned counsel for the OPs has also reiterated all the averments mentioned in the written statement. He argued that the present claim has been repudiated on the basis of intentional non-disclosure of material facts and false declarations made in the Declaration of Good Health (DOGH) by the deceased LA. The LA was diagnosed with Chronic Liver disease with splenomegaly and was undergoing treatment for the same much prior to signing of DOGH on 22.12.2017 from Adesh Medical College and hospital, Agarwal Nursing Home, Maharaja Agarsan Hospital and PGIMS Hospital. He further argued that the complainant mislead the OPs into believing that he was medically fit to avail the said insurance covers by giving false declaration on DOGH regarding his medical history. Had the LA disclosed the information sought in a truthful manner, the OPs would not have issued the subject insurance cover to the LA/Member. The said intentional non-disclosure of the material facts goes to root of the matter vitiating the subject policy and rendering it invalid, void and unenforceable and prayed for dismissal the present complaint with costs.

8.             There is no dispute about the policy in question commenced from 22.12.2017 to 21.12.2020 with cover amount at inception of Rs.10,50,000/- Ex.R-1. However, the OPs repudiated the claim of the complainants vide letter dated 30.06.2018 Ex.C-1/Ex.R-5 on the ground that LA Mr. Sanjeev Kumar was suffering from Chronic Liver Disease with Portal Hypertension prior to the date of signing the DOGH Declaration of Good Health. To corroborate this fact, the OPs produced OPD cards of Dr. B.D. Sharma PGIMS, Rohtak as Ex.R7; Maharaja Agarsan Hospital, Kurukshetra as Ex.R8; Adesh Medical College & Hospital, Ambala Cantt Ex.R9 & Ex.R11 and Aggarwal Nursing Home, Kurukshetra as Ex.R10. It may be stated here that the above medical record produced by the OPs are only the photocopier documents and except these OPD cards, the insurance company has not produced any medical record of the LA Mr. Sanjeev Kumar to prove that said LA was taking treatment for the Chronic Liver Disease with Portal Hypertension, referred to above, prior to taking the policy in question. It was not proved on record as to who had disclosed that LA Mr. Sanjeev Kumar was suffering from the said diseases. Further, affidavit of the treating doctors, who had recorded the patient history, has not been produced on record by the OPs. Moreover, in these medical documents, there are not mentioned the detailed particulars of the patient concerned, as such, it is nowhere proved that these documents belongs to the LA Sanjeev Kumar. In the case of Rajinder Singh Vs. The New India Assurance Co. Ltd. & Ors., 2018(3) CLT-187, the Hon’ble State Commission Haryana, has held that the treating doctor mentioned that the complainant was suffering from diabetes and hypertension for the last about three years without mentioning his source of knowledge in this regard and has not mentioned as to whether the patient had himself told him that he was suffering from the abovementioned ailments- Repudiation of the claim was not justified. Further, in the case of LIC of India Vs. Joginder Kaur, 2005, CPJ-78, the Hon’ble State Commission Haryana has held that the unproved case history recorded by some person on the date of admission of the patient, would not be cogent and convincing evidence to repudiate the case, unless it was coupled with medical record for the treatment prior to the submission of the proposal form.

9.             Moreover, for the sake of discussion if the version of the OPs that the LA was suffering from Chronic Liver Disease with Portal Hypertension prior to the date of signing the DOGH, is believed, even then in the Investigation Report Ex.R-3 done by Vision Investigation Services, the cause of death of LA Sanjeev Kumar was specifically mentioned as “Heart Attack”. Meaning thereby the LA was died due to heart attack instead of any liver disease. Keeping in view the ratio of the law laid down by the superior Fora in the aforesaid cases and the facts and circumstances of the present case, we are of the considered opinion that the insurance company has not been able to prove the allegations, on the basis of which, they had repudiated the claim of the complainant. Thus, the repudiation of the claim done by the OPs is held to be unjustified and amounts to deficiency in services on their part. Hence, the OPs are liable to pay the insured amount of Rs.10,50,000/- alongwith compensation and litigations expenses, to the complainants.

10.            In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs in the following manner:-

1. To pay the insured amount of Rs.10,50,000/- to the complainants alongwith interest @ 6% per annum w.e.f. 27.9.2018 i.e. the date of filing the present complaint, till its realization.
2. To pay Rs.10,000/- as compensation for mental agony and physical harassment suffered by the complainants.
3. To pay Rs.5,000/- as litigation expenses.

 

                The OPs are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainants will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs. It is made clear that all the complainants would be entitled for equal share of the entire awarded amount (insured amount + compensation+ litigation expenses). The share of the minors i.e. complainants No.2 & 3, will be deposited in shape of Fixed Deposit in the favour of complainants No.2 & 3, till attaining their age of maturity. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Forum:

Dt.:20.1.2020.                                            (Neelam Kashyap)

                                                                President.

 

(Issam Singh Sagwal),         (Neelam)       

Member                             Member.