IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of November, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.201/2022 (Filed on 26/09/2022)
Complainant : Indu P.V @ Indu Sajith,
W/o Sajithkumar.S,
Perumballil House,
Karikkode Kara,
Thodupuzha – 685 585.
(By Adv: Joseph Chandy)
Vs.
Opposite parties : 1. The Manager,
HDFC Ergo General Insurance Company Ltd.,
2nd Floor, Safa Trading Centre,
Railway Station Road,
Kottayam – 686 001.
2. The Divisional Manager,
HDFC Ergo General Insurance Company Ltd.,
6th Floor, Leela Business Park,
Andheri, Kurla Road,
Andheri East, Mumbai - 400 059.
(Both by Advs: Saji Issac K.J &
Niithin Sunny Alex)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
Crux of the complaint is as follows:
Opposite parties issued Sarv Suraksha Plus(Group) insurance policy in favour of the late Sajithkumar, Perumballil House, Karikkode Village, Thodupuzha for the period from 4/03/2022 to 3/02/2027 with a condition that in case of accidental death the insurer would pay full sum insured to the legal heirs of the deceased and the coverage of the policy is Rs.10 lakhs. As per the policy conditions the company shall also in addition to the sum insured pay upto 2% of the sum insured or Rs.5,000/- towards the cost of transporting insured’s remains from the place of death to the hospital or residence and or cremation or burial ground.
It is submitted in the complaint that while late Sajithkumar has been driving his own car bearing Registration Number KL-38/K/0212 through Muvattupuzha - Perumbavoor Road when the vehicle reached at Thayakarachirabagam, Rayamangalam at 3:00 PM on 11/03/2022 hit on another car bearing Registration Number KL-44-G-1852. As such Sajithkumar sustained serious injuries accordingly he has been admitted at Sanjo Hospital, Perumbavoor, thereafter referred to Holy Family Hospital, Muthalakodam and treated there upto 21/03/2022 with the diagnosis of RTA, displaced fracture left fourth RIB, anterior aspect, contusion with raised compartment pressure and cellulitis right leg. He was initially treated at Sanjo Hospital, Perumbavoor subsequently he has referred to Aster Medicity Hospital, Kochi and Sajithkumar died on 22/04/2022 due to the reason of sepsis, septic shock due to road traffic accident. As per the policy conditions issued by the opposite parties the complainant is entitled to get sum insured of Rs 10,00,000/- so the complainant requested to pay the amount of Rs.10,00,000/- but the second opposite party repudiated the claim of the complainant on 28/06/2022 stating that death of the insured was non-accidental in nature. The repudiation of claim by the opposite parties is unfair trade practice and negligence hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.10 lakhs and other charges with 18% interest.
Upon receipt of notice from this Commission opposite parties appeared before the Commission and filed joint version contending as follows :
The insured had availed Surv Suraksha Plus(Group) policy for the period from 4/03/2022 to 03/02/2027 issued via master policy. The policy was issued against a loan available from M/s.HDFC Bank Limited vide loan number 127782068, the first inception of the policy is 4/03/2022. The member insured was Sajithkumar S. The policy provides multiple coverage under different sum insured. The policy is based on the statements and declaration provided at the time of the proposal and is subject to receipt of the premium. The complainant has made a claim under personal accident, the said coverage provides cover for accidental death, disappearance, permanent disability as per the table under provided in the terms and conditions and the coverages under different sum insured.
As admitted by the complainant the insured had only sustained displaced fraction left fourth Rib, Anterior aspect, contusion with raised compartment pressure and cellulites right leg. The allegation in the complaint that Sajithkumar died due to the injuries sustained in a motor vehicle accident caused on 11/03/2022 is false. He was treated with only oral analgesics which is evident from adult initial assessment form dated 17/03/2022 from Holy Family Hospital, Muthalakodam. The death certificate from Aster Medicity dated 24/04/2022 confirms that Sajithkumar died of sepsis, septic shock, multiorgan dysfunction syndrome, acute chronic liver failure, acute renal failure and probable secondary bacterial peritonitis. The insured was a known case of alcoholic liver disease with Cirrhosis and portal hypertension T2DM and hypertension. He was also having decompensate alcohol liver disease with moderate ascitis and Grade I hepatic encephalopathy. The insured suppressed his ailments while submitting the proposal form. The insured had suppressed material facts and also made false declarations and hence the policy had become void ab initio.
As per the conditions of the policy under the head disclosure to information norm the policy shall be void and all premium paid thereon shall be forfeited to the company in the event of misrepresentation, mis-description or non-disclosure of any material fact. The contract of insurance being a contract uberimmae fidei, parties are bound to observe utmost good faith and the complainants are duty bound to disclose all existing medical conditions pertaining to the health of the persons proposed to be insured. The cause of death was not due to accident hence the same will not be covered under the subject policy. There is no deficiency in service or unfair trade practise on the part of the opposite parties.
Complainant filed proof affidavit and marked Exhibits A1 to A12. Anish Baskaran who is the Senior Manager(Legal) of the opposite parties filed proof affidavit and marked Exhibits B1 to B5 and Exhibits X1 and X2.
On evaluation of complaint, version and evidence on record we would like to consider the following points :
(1) Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
(2)If so what are the reliefs and costs?
For the sake of convenience we would like to consider point number one and two together.
POINTS 1 & 2 :-
The opposite parties issued Exhibit A1 Sarv Suraksha Plus (Group) insurance policy in the name of Sajithkumar residing at Perumballil House, Karikkode Village, Thodupuzha, for the period from 4/03/2022 to 3/02/2027. The policy stipulated that in the event of accidental death, the opposite party would provide the full sum insured of Rs.10 lakhs. Additionally, as per optional cover opted, the company committed to pay Rs.10,000/- for transporting the insured’s mortal remains from the place of death to the hospital, residence, cremation, or burial ground.
It is proved by Exhibit A9, Final Report filed by the police authorities of Kuruppampady police station before JFMC III, Perumbavoor that while driving his own car, bearing Registration Number KL-38/K/0212 through Muvattupuzha-Perumbavoor Road, Sajithkumar met with an accident at Thayakarachirabagam, Rayamangalam, around 3:00 PM on 11/03/2022, colliding with another car registered as KL-44-G-1852. Consequently, Sajithkumar sustained injuries and was initially admitted to Sanjo Hospital, Perumbavoor.
On perusal of Exhibit A4 which is the discharge summary from the Holy Family Hospital, Muthalakodam we can see that Sajithkumar was admitted therein on 17/03/2022 and discharged on 21/03/2022.
He was diagnosed with displaced fracture of the left fourth rib, anterior aspect, contusion with raised compartment pressure and cellulitis in the right leg, decompensated alcoholic liver disease with Cirrhosis and portal hypertension. On going through the history and clinical findings in Exhibit A4 we can see that on clinical and radiological evaluation he was found to have sustained undisplaced fracture of the left fourth rib anterior aspect and was having contusion of right leg which resulted in cellulities and elevated right leg compartment pressure. It is further stated in Exhibit A4 that he was also found to be in decompensated alcoholic liver disease with moderate ascitis and Grade I hepatic encephalopathy and he was admitted for management of his chest injury, right leg cellulitis and decompensated liver cirrhosis. It is further proved by Exhibit A4 that he was treated with intravenous antibiotics, intravenous FFP transfusion, intravenous albumin supplementation and supportive care.
Exhibit A6 which is the death certificate from the Aster Medicity Hospital dated 24/04/2022 confirms that Sajithkumar died of sepsis, septic shock, multi organ dysfunction syndrome, acute chloride your failure, acute renal failure and probable secondary bacterial peritonitis. On perusal of X2 treatment records from the Aster Medicity Hospital, we can see that the said Sajithumar has admitted there on 22/04/2022 and treated till 24/04/2022.
Exhibit A5 is the certificate issued by Dr. G.N. Ramesh of Aster Medicity Hospital on 18/06/2022. In Exhibit A5 it is certified by Dr.G.N. Ramesh that Sajithkumar had acute chronic liver failure and renal failure. The complications leading to his death were directly related to the injury sustained during the accident and the sepsis that followed. On perusal of Exhibit X2, we can see that it was issued by Dr.G.N.Ramesh who issued A5 certificate was the doctor who treated Sajithkumar till his death. The opposite parties did not adduce any evidence to contradict or rebute Exhibit A5 certificate. They have not taken any steps to testify the doctor in any way the reason best known to them. Therefore we are of the opinion that the contention of the opposite parties that the cause of death was not due to the accident will not sustain.
Another contention raised by the opposite parties is that the insured Sajithkumar obtained the policy by suppressing material fact that he was a known case of alcoholic liver disease with Cirrhosis.
On perusal of Exhibit X2 treatment records from Aster Medicity Hospital, we can see that Sajithkumar have diagnosed CLD in 2016 and admitted in the hospital on 29/12/2021 for the complaints of decompensated liver cirrhosis secondary to viral gastroenteritis, Grade 2 encephalopathy. Perusal of Exhibit B1 proposal form we can see that he had not disclosed the history of his ailment in the proposal form to obtain the policy from the opposite parties.
In Manmohan Nanda Vs. United India Insurance Co Ltd, Hon’ble Supreme Court has held as under :
“(i) There is a duty or obligation of disclosure by the insured regarding any material fact at the time of making the proposal. What constitutes a material fact would depend upon the nature of the insurance policy to be taken, the risk to be covered, as well as the queries that are raised in the proposal form.
(ii) What may be a material fact in a case would also depend upon the health and medical condition of the proposer.
(iii) If specific queries are made in a proposal form then it is expected that specific answers are given by the insured who is bound by the duty to disclose all material facts.
(iv) If any query or column in a proposal form is left blank then the insurance company must ask the insured to fill it up. If in spite of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or nondisclosure of a material fact, and seek to repudiate the claim.
(v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors. If, on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre-existing illness, and on such satisfaction it has issued the policy, it cannot thereafter, contend that there was a possible pre-existing illness or sickness which has led to the claim being made by the insured and for that reason repudiate the claim.
(vi) The insurer must be able to assess the likely risks that may arise from the status of health and existing disease, if any, disclosed by the insured in the proposal form before issuing the insurance policy. Once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition which was disclosed by the insured in the proposal form, which condition has led to a particular risk in respect of which the claim has been made by the insured.
(vii) In other words, a prudent insurer has to gauge the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so. Such an exercise is dependant on the queries made in the proposal form and the answer to the said queries given by the proposer.”
Herein case on hand, on perusal of Exhibit B1 we can see that there are questionnaires regarding the health condition of the proposer to avail the insurance policy from the opposite parties. It is observed from Exhibit B1 proposal form that the proposer has not disclosed any history of his ailment to the insurer. Since we can hold that Sajithkumar availed the policy from the opposite parties by suppressing the material facts regarding physical condition.
On going through the Exhibit B2 terms and conditions of the policy we can see that the policy shall be void and all premium paid thereon shall be forfeited to the company in the event of misrepresentation, mis-description or non disclosure of any material fact.
In SGS India Ltd vs. Dolphin International Ltd. has held that ‘’The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant’’.
As the complainant failed to prove any deficiency in service on the part of the opposite parties we are of the opinion that the complaint is to be dismissed.
In the result the complaint is dismissed.
Pronounced in the Open Commission on this the 24th day of November, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant :
PW1 - Usha P.K
Witness from the side of the Opposite Parties :
Nil
Exhibits from the side of the Complainant :
A1 - Copy of Sarv Suraksha Plus(Group) policy issued by
the 1st opposite party
A2 - Copy of Policy Conditions issued by the 1st opposite party
A3 - Copy of repudiation letter dated 28/06/2022 issued by
the 1st opposite party
A4 - Discharge Summary dated 21/03/2022 issued from Holy
Family Hospital, Muthalakodam
A5 - Copy of Medical Certificate dated 18/06/2022 issued
from Aster Medicity Hospital, Kochi
A6 - Copy of Death Certificate dated 24/04/2022 issued
from Aster Medicity Hospital, Kochi
A7 - Copy of Adult initial assessment form dated 17/03/2022
issued from Holy Family Hospital, Muthalakodam
A8 - Copy of FIR dated 13/03/2022 prepared by S.I of Police,
Kuruppampady
A9 - Copy of Final Report dated 22/04/2022 prepared by
S.I of Police, Kuruppampady
A10 - Copy of Marriage Certificate dated 07/01/2012
A11 - Copy of Aadhar of the petitioner
A12 - Copy of Death Certificate dated 24/04/2022 issued
from Aster Medicity Hospital, Kochi
Exhibits from the side of Opposite parties :
B1 - Copy of the Proposal Form
B2 - Copy of the Policy Schedule
B3 - Copy of the Claim Form submitted by the complainant
B4 - Copy of Adult initial assessment form dated 17/03/2022
From Holy Family Hospital, Muthalakodam
B5 - Copy of Death Report of Sujithkumar
X1 - Copy of medical documents from Holy Family Hospital,
Muthalakodam
X2 - Copy of medical documents from Aster Medicity, Kochi
By Order,
Sd/-
Assistant Registrar
