Counsel for:-

The Complainant: Shri Soumendra Chand & Associate Advocate.

The Opposite Party 1 & 2  :Shri Sudhanshu Kumar Nanda Advocate.   

The Opp.Party No.3: Shri Manas Ranjan Mohanty & Associate Advocate.    

                                             JUDGEMENT

Shri A.K.Patra,President:

1. The captioned consumer complaint is filed by the complainant named above inter alia alleging deficiency in service on the part of the Ops for repudiation of claim of insurance benefit on the ground of suppression & non-disclosure of material facts of pre-existing medical history of life assured.
2.  The complainant seeks for an order directing the Ops to pay Rs. 8,00,000/- which includes compensation under the policy along with finance amount with interest on the financed vehicle  and for an award of Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of the litigation with interest @ 12 % per annum  payable by the  Opposite Parties.
3. Brief facts of the case of the complainant are that, the complainants are  the sons/legal heirs of insured deceased Kshyamanidhi Nag. During his life time , Kshyamanidhi Nag  had purchased a vehicle XUV 300 being financed by the Mahindra & Mahindra Financial Service Ltd, Bhawanipatna /OP 3 vide Loan Account No.6154548 . The OP 3 offered a complete cover group plan policy of Kotak Life Insurance Co. Ltd along with finance of the above vehicle. Accordingly  borrower  Kshyamanidhi Nag opt to have insured  and a Kotak Complete cover group plan (KCCP)  vide Policy No.OR00002 with effect from the date of finance is issued by Kotak Life Insurance Co. Ltd /OP 1 receiving adequate premium where it is assured that , if the borrower will be died then the entire outstanding amount along with  interest will be waived. The said policy was a complete cover group plan where premium was taken to cover liability to clear the outstanding loan amount along with interest in case of death of the policy holder.
4. It is further submitted by the complainant that, the policy holder Kshyamanidhi Nag  died on 02.06.2019  at his residence during the policy period and after death of the policy holder the petitioners  claimed  insurance benefit under the above mentioned policy along with required documents before the OP No.1 vide claim No.KC00727 but on dt.24.12.2019 the complainants received the  letter of repudiation dt.17.12.2019 from the op/insurance company which contend that, “the claim  made by the complainants is repudiated as per term and condition of the insurance as the deceased was suffering from malignancy of oral cavity and vestibular Neuronitis, severe Asthma  with hyper tension since 2002. The member was under treatment for the aforesaid ailment prior to the date of signing the DOGH”. The complainants submitted that, their deceased father was not suffering from any disease rather he was in a sound health & doing his day to day work perfectly. It is alleged that, the Ops without applying their mind has arbitrary repudiated their claim for which the petitioners suffer irreparable loss, suffering mental agony with a burden to repay the outstanding loan amount.
5. The Complainants further submitted that , the Ops  have neither  supplied the hire purchase agreement nor supplied the policy of complete cover group plan bearing No.OR00002 and that ,the act of the Ops  is nothing but unfair trade practice & deficient in their service towards the complainants caused financial loss & mental agony . Hence, this complaint.
6. This consumer complaint is contested by the Ops by filing their respective written version.
7. The Op No.1 & 2 submitted that, the claim of the complainant has been repudiated on the ground that, the member has not disclosed correct information and suppressed the material facts of preexisting diseases in the Membership Form cum Declaration of Good Health (DOGH).
8.  The  OP 1 & 2 further submitted that, after receipt of death claim intimation  the Op/insurer has  conducted an investigation  under Clause 14(2) of the IRDA,Regulations,2017 in order to verify the authenticity of the said claim and during the process of the claim investigation the Ops found the discharge ticket issued by district headquarter hospital, Bhawanipatna, Kalahandi  with Regd. No.5783,date of admission as 23.08.2002 & the date of discharge is 09.09.2002 of the insured for treatment of acute severe asthma & hypertension and that, a medical certificate is issued by Dr.Pradyumna Kishore Panda, ENT Specialist at District Head Quarters Hospital on dt.07.04.2019 confirming that, the deceased member was under treatment of Dr.Panda since 21.02.2019 to 07.04.2019 for suspected malignancy of oral cavity & vestibular neuronitis. It is further contended that, the insurance cover has been obtained fraudulently, dishonestly & by misrepresentation. The contract of insurance is based on utmost good faith. If the member failed to disclose the true & correct material facts to the insurer or gives any false declaration to that effect, then the cover obtained by the member stands vitiated and the LA or any person claiming under it is not entitled for any benefits under the said insurance cover. It is further contended that, had the member disclosed the information sought in truthful manner, the Ops/insurer would not have issued the insurance cover to the member. The Ops was misled to issue the said insurance cover and thus, rendered the insurance cover void ab-initio, illegal, invalid and unenforceable. Hence, claim of the complainant under the said policy is rightly repudiated by the Ops/Insurance Company and there is nothing deficient service  or unfair trade practice on the part of the insurance company rather the present complaint has got no merits  liable to be dismissed on this count.
9. The Opposite Party No.3 submitted that, the deceased borrower was interested to purchase the vehicle for his business purpose and for the financial assistance he approached to the Op No.3 with required documents for sanction of loan and after verification & being satisfied on the documents, the OP No.3 agreed to sanction a loan of Rs.5,40,000/-on 23.04.2019 and agreement was duly executed in between the OP No.3   and the borrower  & his guarantor . Upon execution of the agreement, a copy of the agreement has been handed over to the deceased borrower and a welcome letter cum repayment schedule was sent to borrower through Regd. Post. The loan amount is repayable with interest in Equated Monthly Installments (EMI)  with further stipulation and  the deceased borrower undertook to pay Additional Finance Charges at the rate of 3% per month in the event of any delay in the payment of the installments in time.
10. The Op 3 further contended that, as per the agreement the said vehicle was hypothecated in favour of the OP No.3 to secure loan amounts due and payable to the said company under the said loan agreement. In the event of default of the payment the OP 3 is entitled to seize the said vehicle, sell the same at public or private sale and to adjust the sale price towards outstanding dues against the borrower.
11. The Op 3 further contended that, the deceased borrower became a chronic & habitual defaulter in repayment of the EMI in deliberate violation of his part of the contract and not paid the EMI to the OP 3 regularly. As per the Statement of Account  as on 11.12.2021, the borrower has  paid only 2 EMIs i.e. Rs.26,200/- and  a huge amount of Rs.3,99,000/- towards EMI outstanding, Rs.1,84,683/- towards Late payment charges are pending due to be repaid along with a future balance of Rs.2,66,000/-to be accrued.
12. It is further submitted by the OP 3 that, the borrower Kashmanidhi Nag had voluntarily opted for insurance policy and had taken the policy from Kotak Life Insurance Company Ltd.   i.e. from OP No.1 & 2 which covers the security of loan and this OP 1 & 2 are not associated in any manner with the OP No.3. The dispute is in between the policy holder and the Insurance Company. According to the policy, the insurance company is liable to clear the loan dues of the OP3 but the Insurance Company repudiated the claim of the complainant on 17.12.2019. The complainant has failed miserably to fulfill his obligations and in order to harass the OP 3 has filed this case. There is no deficiency in service or unfair trade practice on the part of the OP 3 and they have done nothing wrong which caused suffering, harassment or mental agony to the complainant for which the complaint allegation against the Op 3 are devoid of any merit so also the complainant is not entitled to any reliefs as prayed for as such this complaint petition is liable to be dismissed with cost.
13. Heard. Peruse the material on record. We have our thoughtful consideration to the submission of rival parties.
14. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission are :- Whether the complainant is the consumer of the Ops ? Whether the complainant is entitled for insurance benefits there under the alleged insurance policy? Whether the Ops  have deficient in service by  repudiating  the  claim of the complainants ? And whether the complainants are entitling for the relief(s) claimed?
15. The facts that, the deceased  father of the complainants had purchased a vehicle being financed by the Op 3 and he was insured with the OP 1 & 2/ Kotak Life Insurance Co. Ltd.,  vide policy No.OR00002 and that, the date of commencement of the said policy for sum assured of Rs.5,40.000/-  was 23.04.2019 and that, insurer /ops received claim intimation on dt.24.09.2019 along with the death certificate & other required documents from the complainants informing that,  policy holder  died  on 02.6.2019 while policy was in force are not disputed  and that, his sons/complainants  being sons/legal heirs and  the  nominee in the said policy to receive the death benefit under the said policy in case of premature death of insured and that , insurance claim is repudiated on dt. 17.12.2019 is not disputed.
16. The Op 1 & 2 has repudiated the claim on the ground of suppression of material i.e. pre existing diseases of the insured while obtaining of the policy . It is submitted that , the deceased/insured  was suffering from malignancy of oral cavity and vestibular Neuronitis, severe Asthma with Hypertension since 2002 and that, the insured was under treatment for the afore said ailment prior to the date of signing the” Declaration Of Good Health (DOGH)” .  In this regard the op/insurer have relied on the following documents said to have   procured during the assessment of the claim:- (i) the Discharge Ticket issued from District Head Quarter Hospital .Bhawanipatna, Kalahandi ,admission date 29^th August  2002 (ii) the Medical Certificate issued by Dr. Pradyumna Kishor Pamnda , dt. 7^th April  2019  .
17. It is the contention of the Op/insurer that, based on the declaration of Good Health (DOGH) of the insured  Mr.Kshamanidhi Nag the subject    certificate of insurance was issued to him on 23.04.2019 which clearly stated the prime feature of the said insurance cove Rs. 5,40,000/ & the date of commencement was 23.04.2019. The claim of the complainant is just after five months of taking the policy which was categorized under “early claim”. Accordingly, the investigation was made by the Opp.Parties /insurer and it came to know that, the insured/father of the complainants was suffering from malignancy of oral cavity and vestibular Neuronitis, severe Asthma with Hypertension since 2002 i.e. before taking the policy and he had intentionally & fraudulently suppressed such facts of suffering of the disease only to grab the insurance money as such, the death claim has been rightly repudiated.   Thus, we are of the opinion that, onus is there   on the part of Ops/insurer to prove their contention.
18. It is found that, the Op/insurance company in their repudiation letter dt.28.11.2018 insurer has relied on the following documents :- (i) the Discharge Ticket issued from District Head Quarter Hospital. Bhawanipatna, Kalahandi, admission date 29^th August 2002, (ii) the Medical Certificate issued by Dr. Pradyumna Kishor Pamnda , dt. 07^th April 2019. But we found nothing material available on record to hold that, such documents have ever served to the complainants/claimants for their perusal & or have given any opportunities of being heard before repudiation of the claim rather it is found that, repudiation made  unilaterally  which, in our opinion, is  certainly an unfair act of the ops/insurance company.
19. During hearing of this case the O.P/insurance company has filed evidence on affidavit of one Shakil Ahmad ,the Vice President-Legal at Kotak Mahendra Life Insurance Company and produced photo copy of certain  documents to be marked as evidence such as:- (i) photo copy of “DOGH” of insured member vide exhibit R/1, (ii) photo copy of the certificate of Insurance vide exhibit R/2, (iii) photo copy of  Death claim intimation along with Death Certificate vide exhibit R/3 series, (iv) photo copy of discharge certificate dt. 09.09.2002 with Reg. No. 5783 dt. 23.08.2002 of Dist. Head Quarter Hospital, vide exhibit R/4 (marked with objection), (v) photo copy of the letter of Dr. Pradyumn Kishopr Panda , ENT specialist at DHH, Bhawanipatna  vide exhibit R/5 (marked with objection,) (vi) photo copy of the investigation report along with investigators affidavit vide exhibit R/6 (mark with objection), (vii) photo copy of the repudiation letter dt. 17.12.2019 vide exhibit R/7. However, the person investigated the matter has not been examined and the above referred documents/ photo copies filed by the ops/insurance company have not been authenticated to be true or have proved in accordance with law. Since neither the person who wrote the facts that, insured was suffering of the disease nor any one conversant with his handwriting & their signature was produce before this Commission for examination or has filed their evidence on affidavit in this respect as prescribed under C.P. Act to accept it as evidence in support of the pleadings of the op/insurer. Law is well settled that, it is necessary to proof the handwriting and signature of the person who had purportedly recorded the facts of suffering of the disease of deceased insured.
20. Here in this case no documents relied upon by the Ops/insurance company their in the repudiation letter are proved.  In these circumstances it becomes necessary to examine the author of aforesaid history/past history i.e. the facts of suffering of the disease alleged to have their with the insured prior to obtaining of the insurance Policy or in case, he/she is not available to examine, some other person who is conversant with the handwriting of the author of the said history/past history i.e the facts of suffering of the disease of insured is to be examined or could have obtained authentication of their relied  documents from the proper custodian of the same. There is no barred on the part of op/insurer to obtain authenticated documents/papers from the proper custodian of the same and to place in this case record to decide in support of their contention.  Only thereafter it can be consider to   decide as to whether facts of suffering of the disease as recorded on the above referred documents are true or false.
21. Law is well settled that, placing documents in the case record or marking of the document as exhibits are mere reference and convenience of Commission and it has nothing to do with its evidentiary value. Even just because a documents is marked without objection will not dispense with the proved of the said documents in accordance with law.
22. The Learned council for the Ops during his argument referred to some orders passed by the Hon’ble supreme Court & Hon’ble National Commission upon which we have high honour &  gone  through  it and learn the settled principle that , in the event of non discloser of material fact , insurer have every  right to repudiate the claim. We found that,  those case laws are not applicable in the present facts & circumstances of the case in hand  as it is not proved anywhere that, the policy holder was ever suffering from any disease and that, he has not disclose any material fact regarding his health condition while availing of the said insurance policy. Repudiation of claim cannot be accepted merely on placing contention without proof. (Held, in Manik Chandra Pahari vrs LIC of India reported in 2017 ,NCJ ,378 (NC).)
23. We found much weight on the submission of the learned counsel for the complainant that, the documents filed by the Ops as per their list of document in this case are nothing but self –serving documents having no authentication may not be hold trust worthy.
24. The learned counsel for the complainant further drew our attention on the judgement passed in M.Chandra Vrs. M. Thangamuthu & another reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 that ,the  photo copy of documents filed by the Ops as per list of documents during hearing of this case without authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence. It is found that, the Ops/insurer has failed to prove their contentions.
25. Here in the present case, keeping in view of the admission of fact that, op 3/ Mahindra & Mahindra Financial Service Limited has provided loan vide ID 6154548 to the deceased father of the complainants and that, he /the borrower was insured with the ops/Kodak Life Insurance Company Ltd, India under Kodak Credit Term Group  Plan vide Policy No.CR000020 with respect to said loan, date of commencement 23.04.2019 & cover of termination date 22.04.2020 for death sum assured of Rs.5,40,000/- and that, the policy holder  died  on 02.06.25. while policy was in force and that, his son Abinas Nag/here the complainant no. 1 is the nominee to receive the death benefit under the policy is not seem to be any justification for nonpayment of claim under the policy in question to the complainants rather insurance claim is repudiated by the ops/Kodak Life Insurance Company Ltd. is not justified.
26. Law is well settled that, Insurance Policy is taken for reimbursement or for indemnity of loss which may be suffered on account of insured peril, the services of the insurer cannot be said to have hired or availed for a commercial purpose hence, we are of the opinion that, the complainants are consumers of the Ops. Insurance claim as repudiated by the Ops/Kodak Life Insurance Company Ltd, is found to be not justified rather caused injuries to the complainants as such , there is sufficient cause to file this complaint and this complaint is found to be in time well within the jurisdiction of this Commission  .
27. The OP 3/ Mahindra & Mahindra Financial Service Limited has failed to adduced any cogent evidence to hold  that,  the complainants being the legal heirs of deceased borrower have to step in to the shoes of deceased borrower to fulfill the obligation arising out of said loan agreement rather, it is proved on admission in Para 15 of their written version that, according to the policy the insurance company is liable to clear the loan dues to  the answering responding Op 3/ Mahindra & Mahindra Financial Service Limited  which is in no way disputed by the insurer /OP1&2 as such, we are of the opinion, it shall be just & proper that, entire loan dues against the deceased insured as on date is to be recovered by the Op 3/ Mahindra & Mahindra Financial Service Limited from the op 1&2 /insurance company and the insurance company is liable to pay the entire loan dues there against the deceased borrower  since repudiation of insurance benefit under the said policy caused the rise of the loan dues against the borrower. The   complainant or any legal heirs of deceased borrower shall not be liable to pay any loan dues to the Op 3/ Mahindra & Mahindra Financial Service Limited vide loan ID No. 6154548 .
28. Based on the above discussion & settled principle of law, we are of the considered view that, the complainants are entitled for insurance benefit under the said insurance policy and repudiation of the claim is  found arbitrary & not justified which certainly caused financial loss & mental agony to complainant as such the ops/Kodak Life Insurance Company Ltd is deficient in service .Accordingly the ops 1&2 /Kodak Life Insurance Company Ltd authorities are jointly liable to  compensate the injuries of  the complainant  by paying the entire burden of loan due raised  by the OP 3   against the deceased borrower  also liable to pay compensation towards mental agony suffered due to financial burden saddled upon the complainants as a result of said arbitrary repudiation of  insurance claim and to pay cost of this litigation. Hence it is ordered.
6698606.                                                

       This consumer complaint is allowed in part against the Ops on contest with the following direction:-

1. The ops 1&2 /Kodak Life Insurance Company Ltd authorities are here by directed to pay entire loan dues there against the deceased insured borrower Kshyamanidhi Nag under loan ID No. 6154548 directly to the Op 3/ Mahindra & Mahindra Financial Service Limited and the Op 3/ Mahindra & Mahindra Financial Service Limited shall not claim any loan dues from the complainants or any other legal heir of said deceased borrower under loan ID No. 6154548.
2. The ops 1&2 /Kodak Life Insurance Company Ltd is further directed to pay Rs 10,000/- only towards litigation expenses to the complainants.  
3. It is further directed that, this order be complied within 45 (forty-five) days from the date of received of this order failing which the ops 1&2 /Kodak Life Insurance Company Ltd authority are personally liable to pay Rs.500/- per day as delayed compensation to the complainant till compliance of this order.

    Dictated and corrected by me.

                        President

                     I   agree.                            

                                                         Sd/-                                                                                                                                                                 Member   

Pronounced, in the open Commission today on this 4^th day of October  2023 under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum.  

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission .Ordered accordingly.