Orissa

Cuttak

CC/56/2019

Jayanti Bastia - Complainant(s)

Versus

Regional Manager,Reserve Bank Of India - Opp.Party(s)

B M Mohapatra

25 Jul 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.56/2019

1.          Jayanti Bastia,

Wife of Ashok Kumar Bastia.

 

2.          Ashok Kumar Bastia,

S/o: Late Narayan Bastia.

 

Both are At:Sartol,P.S:Madhupatna,

                     Dist:Cuttack.                                                                       ...Complainants

 

 

          Vrs.

 

1.        Regional Manager,

Reserve Bank of India,Bhuaneswar,

                 Dist:Khurda.

 

2.       Branch Manager,

Mahindra & Mahindra Financial Services Ltd.,

                   2^nd Floor,Sumitra Plaza,Badambadi,

Arunodaya Nagar,Dist:Cuttack-753012.

 

3.       Authorised Officer,

Kotak Mahindra Life Insurance Co. Ltd.,

                  2^nd floor,Plot:C-12,G-Block,BKC,

Bandra(E ),Munbai-400051.

 

4.        Branch Manager,

Kotak Mahindra Life Insurance Co. Ltd.,

                    7^th Floor,Building No 21,Infinity Park,

Off Western express Highway, General A K Vaidya Marg,

Malad( E),Mumbai-400097.

 

5.       Regional Transport Officer,Cuttack,

At/PO:Candinichowk, Dist:Cuttack-753002.                    ….Opp. Parties.

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    28.05.2019

Date of Order:  25.07.2024

 

For the complainant:            Mr. B.M.Mahapatra,Adv. & Associates.

For the O.Ps no.1& 5:           None.

For the O.Ps No.2:                 Mr. P.K.Ray,Adv. & Associates.

 

For the O.Ps No.3& 4:           Mr. D.P.Tripathy,Adv. & Associates.

 

Sri Debasish Nayak,President

Case of the complainants as made out from the complaint petition in short is that their son had availed vehicle loan to the tune of Rs.3,23,000/- from O.P no.2 in order to purchase one Renault Kwid vehicle.  The said vehicle was registered vide Registration number OD-05-AA-7080.  It was agreed that the loanee is to clear the loan in 60 number of instalments which was effective from 23.5.2017 onwards. O.Ps no.2 & 3 had not supplied the loan documents to the complainant.  The son of the complainants had paid 12 number of instalments to O.P no.2 and had thus paid till May,2018.  On 9.5.2018 the said bachelor son of the complainants had died due to cardiac arrest and the fact was intimated to O.Ps no.2 & 3.  Relevant loan documents with regard to the insurance coverage of the loan was required by the complainants but they were assured that the loan account would be settled under the loan protection policy . Subsequently no result had yielded.  As per the policy, the financier shall insure the loanee under the Loan Protection Policy and in case of death of the loanee during the loan period, the entire loan dues shall be covered under the said Loan Protection Policy.  Accordingly, NOC is to be issued in favour of the legal heir of the deceased loanee.  After the death of their son, the complainants had putforth their insurance claim on 1.8.2018 before the O.Ps no.2 & 3.  On 3.9.2018, the O.Ps had issued a letter stating therein that the loanee/policy-holder had not disclosed about his previous ailments which he had, prior to executing the documents.  According to the complainants, such letter of the O.Ps is quite illegal and is issued with a motive  not to settle the bonafide claim of the complainants.  Having no other way out, the complainants had approached before this Commission seeking a sum of Rs.50,000/- towards their mental agony, another sum of Rs.25,000/- towards the harassment as done to them and further a sum of Rs.50,000/- towards the litigation of the complainants.  They have also prayed for any other order as deemed fit and proper.

            Together with their complaint petition, they have annexed copies of several documents in order to prove their case.

2.         Out of the five O.Ps as arrayed in this case, having not preferred to contest this case, O.Ps no.1 & 5 have been set exparte vide order dated 6.11.2019.  However, O.Ps no.2,3 & 4 have contested this case but O.P no.2 has filed it’s separate written version while O.Ps no.3 & 4 have conjointly filed their written version in this case.

            As per the written version of O.P no.2, the case of the complainant is not maintainable which is liable to be dismissed.  He admits that the deceased son of the complainant had availed loan of Rs.3,23,000/- for purchasing a Renault Kwid vehicle apart from the ancillary charges of Rs.1,42,000/-. The loanee was thus to pay back a sum of Rs.4,65,000/- in 60 number of EMIs which was effective from 10.6.2017 to 10.5.2022 and he was to pay an instalment @ Rs.7750/-.  In order to safeguard the loan without causing any botherance on the family members of the loanee, insurance coverage under Kotak Credit Group Plan was effectuated which was with certain terms and conditions.  When the death of the loanee Ajay Bastia was intimated to O.P no,2, the said fact was immediately informed to the insurer requesting to settle the death insurance claim.  But the insurer had repudiated the claim of the deceased borrower on the grounds that there were suppression of material facts with regard to the previous illness of the loanee/death assured.  Thus, O.P no.2 has no role to play in the settlement of the insurance claim towards the death of the loanee who happens to be the son of the complainants of this case.  Accordingly, is prayed by the O.P no.2 through it’s written version to dismiss the complaint petition as filed against O.P no.2 with exemplary cost. 

            Through their written version O.Ps no.3 & 4 have stated that the case as filed by the complainants is not maintainable which is liable to be dismissed since because they have not approached this Commission with clean hands.  In this context, they have relied upon a decision of the Hon’ble Supreme Court in the case of Arunima Baruah Vs. Union of India & Ors. (2007) 6 SCC 120 wherein it is held that “one who seeks justice must come to the court with clean hands”.  The insurance cover was issued by O.Ps no.3 & 4 on 29.5.2017 in favour of the loanee/policy holder who died on 9.5.2018 which is within 12 months from the date of commencement of the policy.  According to them, the policy-holder had previous ailments which he had not disclosed to them while executing the insurance policy papers.  Thus, the insurance contract is void abnitio as it hits  the principles of Uberrimai fidei. In this context, O.Ps no.3 & 4 have relied upon a catena  of decisions of the Hon’ble Higher Forums which are as follows:-

1. In the case of Satwant Kaur Sandhu Vs. New Assurance Co. Ltd. [2009 (9) Scale 488] decided by Hon’ble Supreme Court wherein it is held that “a contract of insurance falling in the category of contract uberrimaefidei, meaning a contract of utmost good faith on the part of the assured.  Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.”
2. In the case of New India Assurance Co. Ltd. Vs. Shri Vishwanath Manglunia reported in R.P No.164/2006 wherein it was held by the Hon’ble National Commission that insurance is a contract based on complete good faith and any suppression of material fact would be a breach of such contract and the insurer would be justified in repudiating the claim once such suppression is established.
3. In the case of Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., (2009) 8 SCC 316 decided by Hon’ble Supreme Court has held that “when information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.  Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer.
4. In the case of UCO Bank Vs. S.D.Wadhwa in R.P. No.2479 of 2008 decided by the Hon’ble N.C.D.R.C on 24.7.2013 held that “Complaint involves complicated and complex questions which require elaborate evidence hence Dispute not adjudicable in summary jurisdiction therefore complaint not maintainable.
5. In the case of Janta Machine Tools Vs. Oriental Insurance Co. Ltd.  1(1991) CPJ 234 (NC) decided by Hon’ble N.C.D.R.C wherein it is held that “Thus this is not a case where the insurance answering respondent did not take prompt and necessary steps for deciding the claim under the policy of insurance.
6. In the case of Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs United India Insurance Co. Ltd. [(2010) 10 SCC 567] decided by Hon’ble Apex Court which was also clearly stated in the case of Reliance Health Insurance Co. Ltd. Vs. Madhavacharya(R.P No.211 of 2009) herein it was held by the Hon’ble National Commission that “Since the insurance between the insurer and the deceased life assured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly construed to determine the extent of the liability of the insurer.”
7. In the case of Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International (2013 (1) Scale 410): The Hon’ble Supreme /court held that while construing the Terms of the contract of insurance, the court must give paramount importance to the terms used in the said contract.
8. In the case of General Insurance Society Ltd. Vs. Chandumul Jain & Anr, (1996) 3 SCR 500): the Hon’ble Apex Court has made the following observations that in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the party.
9. In the case of United Insurance C. Ltd. Vs. Harchand Raichand Rai Chandanlal I (2003) CPG 393 & Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. II(2009) CPJ 34: The Hon’ble Supreme Court has held that an insurance policy is to be construed as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added by giving a different meaning to the words mentioned therein.
10. In the case of Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66: The Hon’ble Supreme Court has laid down the test of deficiency in service by stating that “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Thus, according to the O.Ps no.3 &4, the deceased policy holder/loanee of this case had suppressed his past medical history of Dilated Cardiomyopathy with severe left Ventricular Dysfunction in the declaration of his good health.Such suppression of pre-existing disease which was not disclosed by the policy- holder/loanee while executing the policy documents on 23.5.2017 amounts to suppression of material facts which he was under obligation to disclose without hiding those.The O.Ps have relied upon the discharge ticket of the deceased policy-holder from S.C.B.Medical College & Hospital where he was admitted on 2.2.2016 and was discharged on 5.2.2016 which revealed that the patient was admitted as he was suffering from Dilated Cardiomyopathy with severe left ventricular dysfunction.The subsequent discharge certificate of the said policy-holder from S.C.B.Medical College revealed that he was again admitted there on 24.10.2017 as he was suffering from Dilated Cardiomyopathy with severe left ventricular dysfunction and was discharged on 27.10.2017 after treatment.The out-patient details as issued from S.C.B.Medical College, Cuttack dated 3.11.2017 had revealed that the policy holder was suffering from Dilated Cardiomyopathy with severe left ventricular dysfunction.Copies of such medical reports are annexed alongwith their written version by the O.Ps no.3& 4 vide Annexure-R-5,R-6 & R-7.When the life insured had suppressed such material facts, the O.Ps had repudiated the claim of the complainants vide their letter dated 7.9.2018.The O.Ps no.3 & 4 have also relied upon the decisions of higher Forums which are as follows:

1. In the case of in Satwant Kaur Sandhu Vs New India Assurance Company Ltd. IV (2009) CPJ 8 (SC) 2012 decided by Hon’ble National Forum is that “Nonetheless, it is a contract of insurance falling in the contract of uberrimae demeaning a contract of utmost good faith on the part of the assured.
2. In the case of Devamma Vs. Life Insurance Corporation, the Hon’ble  NCDRC decided on 30.1.2014 in R.P No.4323 of 2012 wherein it is held that “while filling proposal form, the insured did not give correct answers to various questions contained in the proposal form.  It is also clear from the answers given by the policy holder in the proposal form that Life Insured concealed material information from the Insurance Company before taking the policy in question.
3. In the case of Allianz Life Insurance Company and Ors. Vs. Jaspal Kaur decided by the Hon’ble Supreme Court on 13.4.2016 in R.P No.2530/2014 wherein it is held that if a person makes a wrong statement with the knowledge of consequence therefrom, he would ordinarily be estopped from pleading that even if such a fact had been disclosed it would not have made any material change.
4. In the case of P.C.Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors, AIR 2008 SC 424, the Hon’ble Apex Court has upheld repudiation of the contract of insurance on the ground of non-disclosure and mis-statement in the proposal form to the various questions to which answers were given by the insured, has held that: “The insured furthermore was aware of the consequence of making a mis-statement of fact.  If a person makes a wrong statement with knowledge of consequence thereof, he would ordinarily be stopped from pleading that even if such a fact had been disclosed, it would not have made any material changes.
5. In the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Patel Vitthalbhai Shivabhai decided by Hon’ble  NCDRC on 5.11.2015 in R.P No.1272 of 2014 has held that contract of insurance is based on utmost bona fide and faith, which in our opinion the respondent has not done so at the time of taking the policy.
6. In the case of Branch Manager,LIC of India T Vs. Jyothi Sudhir decided by the Hon’ble NCDRC on 20.`0.2016 in R.P No.1134 of 2016 has held that any fact which would have influenced the decision of the insurer whether to grant insurance or not, is considered to be a material fact and suppression of such a fact would entitle the insurer to repudiate the claim.

Accordingly, it is prayed by the said O.Ps to dismiss the complaint petition of the complainants with exemplary cost.

3.         Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps no.1,2 & 4, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainants is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps  ?

iii.        Whether the complainant is entitled to the reliefs as claimed by them?

 

Issue no.II.

Out of the three issues, issue no. ii being the pertinent issue is taken up first for consideration here in this case.

After perusing the complaint petition, written versions, written notes of submission as filed from both the sides, as well as the copies of documents available in the case record, it is noticed that the deceased Ajay Bastia is the son of the complainants Jayanti Bastia and Ashok Bastia in this case.  The said deceased Ajay Bastia had availed loan from O.P no.2 to the tune of Rs,3,23,000/- for purchasing a Renault Kwid vehicle.  He had agreed to repay the loan amount alongwith interest etc thereon in 60 number of instalments which was effective from 23.5.2017 onwards.  The said loan was insured through Loan Protection policy scheme by O.Ps no.3 & 4.  On 9.5.2018, the said loanee Ajay Bastia who was a bachelor, had died due to cardiac arrest. The parents of the deceased loanee being the legal heirs of the deceased loanee Ajay Bastia, had applied for the insurance coverage of the loan through the Loan Protection policy as availed by their deceased son Ajay Bastia.  But the said claim of the complainants was repudiated by O.Ps no.3 & 4 through their letter dated 7.9.2018.  In this context, the Insurers who are arrayed as O.Ps no.3 &4 in this case have urged through their written version that the deceased loanee who was the policy holder also and had availed the Loan Protection Policy from them while executing the insurance documents on 23.5.2017 had suppressed the material facts about his previous ailments and had not disclosed those.  The said insurers have relied upon Annexures-R-5, R-6 & R-7 which are copies of documents issued from S.C.B Medical College and Hospital which specifically signifies that the patient Ajay Bastia was suffering from Dilated cardiomyopathy with severe left ventricular dysfunction.  This fact was not at all disclosed by the policy-holder/deceased Ajay Bastia for which the said suppression of material fact hits the principles of Uberimai Fidei which was to be observed while executing the insurance papers as a policy-holder with the insurers.  Accordingly, the insurers through their letter dated 7.9.18 had repudiated the insurance claim of the complainants.  The O.P no.2 being a financier has no role to play in any manner here in this case for sanction of the insurance amount.          

Thus, keeping the facts and circumstances of the case in mind and after going through the pertinent catena of decisions as cited by O.Ps no.3 & 4, this Commission finds that there is  absolutely no deficiency in service on the part of any of the O.Ps as alleged against them by the complainant of this case.  Accordingly, this issue is answered against the complainants of this case.

Issues no.i & iii.

From the discussions as made above, the case of the complainants cannot be said to be maintainable and the complainants are also not entitled to any of the reliefs as claimed by them.  Hence it is so ordered;

 

                                             

ORDER

The case is dismissed on contest against the O.Ps no. 2,3 & 4 and exparte against O.P no.1 & 5  and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 25^th day of July,2024 under the seal and signature of this Commission.        

 

                                                                               Sri Debasish Nayak

                                                                                       President

                     

 

                                                                          Sri Sibananda Mohanty

                                                                                             Member