HON’BLE SUDIP NIYOGI PRESIDENT FACTS The case of the complainants, in brief, is that Pinaki Banerjee, since deceased, who was the husband of the complainant No. 1 and father of the complainant No. 2 and a resident of Chandernagore, Hooghly was an employee of Department of Posts, Government of India, was posted in Kolkata had purchased one flat of 778 sq. ft. super-built-up area along with car parking space being apartment No. A2 (Type-III) Purba Housing Complex, (GD Block) 1582/2, Rajdanga Main Road, Kolkata-700107 on 16/03/2021 by virtue of a deed of conveyance in his favour. In order to buy the said flat, he had taken a loan of Rs.37,29,434/- from opposite party No. 3- Axis Bank Limited. While taking home loan at the request of bank officials, he joined a group life insurance policy to secure the loan and his policy number was 35003240 and premium was Rs.2,14,975/-. Thereafter, on 22/03/2021 i.e. after 6 days from the date of purchase of the flat, he met with an accident while returning from Chandernagore by his car and sustained injuries. He was initially taken to Serampore Care Nursing Home and thereafter, was shifted to SSKM hospital where he succumbed to his injuries on 23/03/2021. Post-mortem examination was conducted in the said hospital which indicated that he had suffered road traffic accident and complainants obtained the documents namely, death certificate etc. Thereafter, complainants filed a death claim with the opposite parties providing the required documents but they repudiated the claim by issuing a letter dated 29/08/2021 stating that he had suppressed his pre-existing clinical condition of diabetes. So, complainants in this case claimed Rs.37,29,434/- from opposite party No. 1 & 2 with interest and for waiving all the charges and interest by opposite party No. 3 which were raised on the loan amount from the date of death, compensation and cost etc. All the opposite parties contested the case by filing written version and also evidence on affidavit. Opposite party No. 1 & 2 claimed that said late Pinaki Banerjee had declared himself to be healthy and not suffering from any form of pre-existing ailments in his insurance proposal form. But subsequently, during investigation after his death, he was found to be a patient of hypo-thyroid, primary hypertension, diabetes (Type- II), overweight etc. prior to assigning the health declaration form and that is why, the claim of the complainants was declined. In their written version, opposite party No. 3 claimed that complainants have no cause of action for this complaint. According to them, there is an option to the borrower to avail a life insurance in order to cover himself till pendency of the loan and accordingly he decided to avail the same from opposite party No. 1. This opposite party has no role to play in the functioning, honouring and/or repudiating of insurance claim as the same is in the exclusive responsibility of opposite party No. 1- company. They also claimed that due to non-payment of EMIs, the loan account of the deceased has been classified as non-performing asset with effect from 03/01/2022 in accordance with the guidelines of the Reserve Bank of India and there has been a total sum of Rs.37,13,229/- being inclusive of interest, late fees and other charges is due as on 02/02/2022. So, they prayed for dismissal of the instant complaint. Besides filing evidence on affidavit, the parties are found to have exchanged questionnaires and replies. Complainants and opposite party No. 3 filed their written notes of argument. The point for consideration is whether the complainants are entitled to the relief (s) as prayed for in this case. FINDINGS Admittedly, the deceased Pinaki Banerjee had purchased one flat as mentioned in point No. 5 of the complaint petition on taking a loan of Rs.37,29,434/- from opposite party No. 3- Bank. It is also admitted that he had also obtained Max Life Group Credit Life Secure from opposite party Nos. 1 & 2 and his policy number was 35003240, the amount of premium was Rs.2,14,975.19/-. The date of commencement of the said policy was 7th May, 2018 with policy terms of 360 months and the effective date of coverage was from 12th March, 2021 to 11th March, 2036 and the sum assured was Rs.37,14,975/- which is the loan amount as revealed by the policy document (Annexure- B) filed on behalf of the opposite party Nos. 1 & 2. Complainants also filed deed of conveyance in respect of the flat purchased and other documents including the policy certificate. Now what happened within a few days after the date of purchase of his flat, the husband of the complainant No. 1 met with an accident on 22/03/2021 while returning from Chandernagore to Kolkata by his car and subsequently, he succumbed to his injuries at SSKM Hospital, Kolkata. It is found from the documents that in connection with his death one FIR was lodged by Dankuni Police Station vide FIR No. 110/2021 dated 16/04/2021 u/s 279/304 I.P.C on the basis of the complaint of complainant No. 1. Post-Mortem examination of the said deceased was held at SSKM Hospital where it has been clearly mentioned that the death was due to the effects of injuries, ante-mortem in nature and on completion of the investigation, charge-sheet was submitted u/s 279/304A, I.P.C. So, it is quite clear that the said policy holder or life assured Pinaki Banerjee sustained injuries in a road traffic accident and subsequently he succumbed to his injuries. Thereafter, the complainant No. 1 raised a death claim before the opposite party Nos. 1 & 2 but they repudiated her claim showing reasons that on investigation they found the said policy holder was a patient of hypo-thyroid, primary hypertension, diabetes (Type- II), overweight etc. and as such he intentionally did not disclose his actual health in the application cum Health Declaration Form. According to the said opposite parties that the health conditions of the said policy holder like diabetes etc. are a strongly elemental in deteriorating the health condition of an individual which greatly lowers the chances of recovery for a patient. It may be mentioned that in a country like ours most of the people after a certain age suffers from some kind of health related issues. In connection with a claim for realization from the insurance company arising out of an incident of death of an insured, the matter which is the most pertinent to consider as to the cause of death of the person insured or to say specifically the proximate and / or immediate cause of death. So, the said contention of the opposite parties seems to be extremely funny as principal and immediate cause of death of the policy holder was not of his health issues but it was the injuries sustained by him in the road accident that actually caused his death. In this connection, Learned Advocate appearing for the complainant cited the decision of the Hon’ble Apex Court in Civil Appeal No. 8245 of 2015 (arising out of SLP ( C ) No. 13589 of 2015 in Sulbha Prakash Motegaonkar & ors. Vs. Life Insurance Corporation of India. The said case was heard against the order of the National Consumer Disputes Redressal Commission where the husband of the appellant No. 1 had taken out a LIC and at the time of taking such policy, he had concealed the fact that he was suffering from lumbar spondilitis with PID with sciatica for which ailment he was taking medical treatment as also he had availed leave on medical grounds. After the policy was given to the said husband, he suffered myocardial infarction and he succumb to his ailment. The claim in terms of the life insurance policy was disallowed on the ground that the deceased had not disclosed his ailment of lumbar spondilitis with PID with sciatica in the proposal form and the said repudiation of claim was upheld by the National Commission. Hon’ble Apex Court in the said case held that the death of the deceased was due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondilitis with sciatica persuaded the respondent not to grant insurance claim. Hon’ble Apex Court observed that the death of the insured was due to ischemic heart disease and myocardial infarction had nothing to do with his lumbar spondilitis with PID with sciatica and opined that since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified and therefore, set aside the order passed by the National Commission and allowed the appeal. So, following the aforesaid observation of the Hon’ble Court in that case, we find here in this case that the repudiation of claim of the complainants was absolutely wrong on the part of the opposite party Nos. 1 & 2 because the imminent cause of death of the said policy holder was due to injuries sustained by him in the road accident as has been reflected in no uncertain terms in the Post-mortem report. So, suppression of his other diseases as mentioned by the opposite parties in the policy form which were not the actual cause of death of the policy holder cannot, in any way, disentitle the complainants from getting their dues of claim from opposite party Nos. 1 & 2. Therefore, we view that the complainants are entitled to the reliefs in this case. So, complainants are entitled to Rs.37,29,434/- along with interest @ 9% p.a. from the date of the claim application. This apart, they are also entitled to compensation of Rs.30,000/- towards harassment and mental agony and Rs.5000/- towards cost of litigation. Be it noted here in their written argument OP No.3 claimed that on being approached by the Complainants for settlement of their home loan, the matter was settled between the parties against the Complainants and OP No.3. Not only that on behalf of the Complainants during argument the said settlement with the Bank i.e. OP No.3 was admitted and further that Complainants already got back the deed of conveyance of the flat which was deposited with OP No.3 and that being so, there is no need to pass any order against OP No.3, and the instant case against OP No.3 is liable to be dismissed. Therefore, it is ORDERED That the instant case be and the same is allowed on contest against OP Nos.1 & 2 and dismissed on contest against OP No.3. Opposite party No.1 & 2 are directed to pay Rs.37,29,434/- (Rupees Thirty-Seven Lakhs Twenty-Nine Thousand Four Hundred Thirty-Four Only) along with interest @9% p.a. from the date of claim application to the complainants. Opposite party No.1 & 2 are also to pay Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the complainants. Both OP No.1 & 2 who are jointly and severally liable are directed to comply with the aforesaid order within 45 days from the date of this order failing which the said awarded amount shall carry interest @12% p.a. until realization. If the aforesaid order is not complied with by the OP No.1 & 2 within the stipulated time as stated above, the complainants shall be at liberty to proceed in accordance with law. Dictated and corrected by me President |
