Hon'ble Mr. Haradhan Mukhopadhyay, President.
The case of the Complainant as stated in the complaint is summarized to the effect that the Complainant Subrata Saha is the son of deceased Subal Chandra Saha who borrowed Rs. 2,10,000/- from the OP HDFC Bank, Cooch Behar on 19.03.2014 for purchasing an Alto car. After getting the said loan money the Complainant’s father purchased an Alto 800 car with an insurance policy (Sarv Suraksha policy) in the name of the said Subal Chandra Saha from the OP-2 HDFC Ergo General Insurance Company Limited having insurance policy Number 2950200720875400000 on 31.03.2014 valid up to 30.03.2019 for instalment. During the said insurance, the OP assured the following coverage and benefits under the insurance :- A. Loss of Job (3 EMI), B. Accidental Death, C. Permanent Total Disability/ Permanent Partial Disability, D. Accidental Hospitalization, E. Critical illness, F. Credit Shield Insurance, G. Garage Cash, H. Household Coverage. Subsequently the father of the Complainant Subal Chandra Saha expired on 31.08.2017 at Command Hospital, Kolkata-27 due to “Diabetic Foot (left) with Septicaemia due to or as a consequence of (1) Type-2 Diabetes mellitus and (2) Cardiac Pacemaker implants dysfunction” i.e. critical illness. Just after expiry of the policyholder it was informed to the OP Company with a prayer for obtaining the claim money i.e. Critical illness coverage on 20.11.2017 to the OP-2 insurance company. The OP-2 sent a letter on 04.12.2017 to the Complainant by informing that the said date is not covered under the critical illness section policy. The Complainant thereafter lodged complaint to the A.D. of CA & FBP, on 12.12.2017 for mediation. Accordingly a tripartite meeting was held at CA & FBP, Cooch Behar on 22.12.2017. But none of the OP Company appeared on the scheduled date. The deceased Subal Chandra Saha had nominated the Complainant as a nominee. The opposite parties illegally repudiated the claim of the Complainant without cogent ground. The cause of action for the present case arose on 14.12.2017 and on other dates which is still continuing. The Complainant prayed for Rs. 1,00,000/- towards death benefit under critical illness, Rs. 50,000/- for mental pain and agony and Rs. 1,00,000/- for deficiency in service plus Rs. 10,000/- towards litigation cost.
The OP contested the case denying all the major allegations against the OP. The positive defence case of OP-1 Branch Manager, HDFC Bank in brief is that, despite the death of the borrower, the liability to repay the loan still exists and evolved upon the legal heirs and successor of the borrower. The OP-1 is a mere financer of the vehicle concerned. There is no nexus regarding the repudiation of insurance claim of the Complainant. The insurance is a contract between the customer and the insurance company. It was the duty of the deceased to liquidate the loan. Since the petitioner is the nominee of the deceased, he should repay the said loan. The OP-1 rendered financial assistance to the father of the Complainant for purchasing the said vehicle with a hypothecation agreement between the OP-1 and the deceased Subal Chandra Saha. As on 08.03.2018 a sum of Rs. 48,273/- is still outstanding against the borrower. As on 05.03.2019 being the date of expiry of the loan, still 12 no.s of EMI are payable. If any claim of the Complainant is allowed, the insurance company should be directed to pay the amount in favour of the OP-1. It is pertinent to mention that it serves “Sarv Suraksha Plus” discloses clearly that “a comprehensive insurance plan that covers your four Wheeler loan from HDFC Bank”. So any compensation should be paid to the HDFC Bank for liquidation of the loan and thereafter the residual amount should be taken by the petitioner as per the contract.
The defence case of the OP-2 in brief is that the case is not legally maintainable. The “Sarv Suraksha Plus” policy provides benefits subject to the satisfaction of certain terms and conditions. The policy covers repayment of loan owing to 1. Accidental Hospitalization, 2. Critical illness, 3. Accidental Death, 4. Permanent Total Disability/ Permanent Partial Disability, 5. Loss of Job (3 EMI), 6. Household Coverage, 7. Credit Shield Insurance of the policy holder, 8. Garage Cash.
The further defence case of the OP2 is that, the policy issued to Subal Chandra Saha deceased insured covered the following ailments : (1)first Heart Attack, (2)Open Chest CABG, (3)Stroke resulting in permanent symptoms, (4)Cancer of specified severity, (5)Kidney failure requiring regular dialysis, (6)Major organ/ Bone marrow transplant, (7)Multiple sclerosis with persistent symptoms, (8)Surgery of Aorta, (9)Primary Pulmonary Arterial Hypertension, (10)Permanent paralysis of limbs. The claim under critical illness was not found payable as death of the insured was due to diabetic foot which resulted in Septicaemia which is not covered under the policy. It also does not fall within the other category of Open Chest CABG stroke resulting in permanent symptom and other diseases. So far as First Heart Attack of severity is concerned as per the elements necessitated under the coverage and reproduced hereunder, none of the death as noted were not noted in the treatment papers to suggest that the cause of death of the insured was a case of First Heart Attack of Specified Severity.
First Heart Attack of Specified Severity:- The first occurrence of Myocardial infarction which means the death of a portion of heart muscle, as a result of inadequate blood supply to the relevant area.
The diagnosis for this will be evidenced by all of the following criteria: (1) A history of typical clinical symptoms consistent with the diagnosis of Acute Myocardial infarction (for eg typical chest pain), (2) New characteristic electrocardiographic changes, (3) Elevation of infarction specific enzymes, Tropinins or other biochemical markers. The following are excluded: (1) Non-ST segment elevation myocardial infarction (NSTEMI) with only elevation of Tropinin I or T, (2) other Acute Coronary Syndromes, (3) Any type of Angina Pectoria.
For repayment of loan claim is only payable if it is registered under the benefit of credit shield coverage and the amount will be paid on the accidental death of the first named borrower in case of joint loan is admitted. Since the death of the insured was due to diabetic foot (left) resulted in septicaemia and cardiac pacemaker implants dysfunction, the same does not fall under accidental death. The credit shield under the scheme is reproduced as under: “In the event of Accidental Death or permanent Total Disability of the insured person during the Policy period, the Company will make payment under this policy as detailed below: The Company will pay the balance outstanding loan amount in the manner agreed in the name of the Insured Person in the books of the Financer/Bank/Mortgage Company, subject to the maximum Sum Insured specified in the Schedule. Claim will be directly paid to the Financer/Bank/ Mortgage Company, to the extent of Outstanding Loan amount.
The outstanding Loan amount would not include any arrears of the borrower due to any reasons whatsoever. The claim to be settled only in respect of the death of the first named borrower and not in respect of the others, which may happen in case loan is taken jointly...”
Since the death of the insured is not accidental, the claim is not payable under the accidental death or credit shield coverage. The OP denied the other allegation. The original insurance policy bearing No. 2950200720875400000 valid from 31.03.2014 to 30.03.2019 is in custody of the Complainant. The Complainant violated the mandatory provisions, terms and conditions of the insurance policy for which he is not entitled to get any relief.
The facts and allegations asserted by the Complainant which the OPs denied led this Commission to ascertain the following points for adjudication of the case.
POINTS FOR DETERMINATION
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainants are entitled to get any relief as prayed for?
- To what other relief if any the Complainants are entitled to get?
DECISION WITH REASONS
Point No.1.
After perusing the entire case record and having given due consideration to the argument advanced by both the parties, the Commission finds that the father of the Complainant Subal Chandra Saha executed an insurance policy with the OP-2 following purchase of a Maruti Alto car. There is no dispute that the loan was sanctioned by the OP-1 Bank to the tune of Rs. 2,10,000/-. The case record also discloses that, an insurance policy (Sarv Suraksha Plus) had been insured in the name of Subal Saha being the father of the Complainant with the OP-2 insurance company having policy Number 2950200720875400000 on 31.03.2014 valid up to 30.03.2019.
It is the admitted fact that the father of the Complainant died due to diabetic foot (left) with septicaemia as a consequence of diabetes mellitus and cardiac pacemaker implants dysfunction which the Complainant designated as critical illness and that OP-2 denied. Thus the relation between the Complainant and the OPs is found to be that of Consumer and service provider. The cause of action for the present case claimed to have arisen on 04.12.2017 and the present case is filed on 19.01.2018. The case is filed within the territorial jurisdiction of this Commission and the pecuniary jurisdiction of this case is well under this Commission. The OPs could not establish sufficient grounds to hold that the present case is not legally maintainable or barred by any law.
Thus it is held that the case is maintainable in its present form and prayer.
Accordingly Point No. 1 is decided in favour of the Complainant.
Point No.2 & 3.
The present points relate to ascertainment as to whether the Complainant is entitled to get the relief as prayed for.
It is admitted fact that the Complainant’s father died of diabetic foot (Left) with septicaemia due to diabetes mellitus and cardiac pacemaker implants dysfunction. The OP-2 denied that the death of the Complainant was not due to any critical illness and accordingly the OP-2 contested heavily by challenging the said disease as out of the perview of the policy issued to the deceased Subal Ch. Saha which are the major grounds for critical illness coverage.
The Complainant in order to discharge his onus, produced the best document like the death certificate being annexure-B and B1. The first and foremost point of repudiation which the Ld. defence Counsel argued is that, the insurer Subal Chandra Saha died of a ground which does not fall within the ground specified in the policy.
If we closely scrutiny, Annexure-A being the insurance policy, it would be found that the critical illness coverage includes first heart attack of specified severity. Under this category, the policy discloses interalia “the first occurrence of myocardial infarction which means the death of the portion of the heart muscle as a result of inadequate blood supply to the relevant area. The diagnosis for this will be evident by all the following criteria: (1) history of typical clinical symptoms consistent with the diagnosis of acute myocardial infarction (for such as e.g. typical chest pain), (2) new characteristic electrocardiogram changes, (3) Elevation of infarction specific enzymes, troponins or other biochemical markers. The followings are excluded: (1) Non-ST segment elevation myocardial infarction (NSTEMI) with only elevation of troponin-1 or T, (2) other acute coronary syndromes, (3) any type of angina pectoris.
Thus the three kinds of characteristics which are excluded from the first attack of specified severity under the critical illness head does not fall within the category of the disease of the insurer. Now, there is no history of the deceased insurer Subal Chandra Saha of any previous heart attack. If we closely scrutinize the death certificate (Annexure-B1) and the medical certificate of cause of death of Subal Ch. Saha as Annexure-B dated 31.08.2017, it would be found that the death was due to Diabetic Foot (left) with Septicaemia due to or as a consequence of (1) Type-2 Diabetes mellitus and (2) Cardiac Pacemaker implants dysfunction.
Ld. Advocate for the Complainant rightly argued that the patient Subal Ch. Saha did not previously face with any heart attack. This is the first time his heart failed due to dysfunction of the cardiac pacemaker.
If we again further closely assess the evidence on record it would be found that the critical illness coverage includes first heart attack of specified severity. The first occurrence of myocardial infarction means the death of a portion of the heart muscle as a result of inadequate blood supply to the relevant area.
It is fact that the deceased had diabetic foot with septicaemia but the cause of death disclosed by the concerned doctor in annexure-B dated 31.08.2017 clearly discloses that the death is the consequence two grounds. If ground-1 does not come within the perview of critical illness, ground-2 being dysfunction of pacemaker is the ground for the death of the insurer Subal Chandra Saha. The reason may be the dysfunctioning of the cardiac pacemaker but the heart muscle was stopped or in other words, the death of a portion of heart muscle was caused due to dysfunctioning of the pacemaker whose function is to create heartbeat. It is crystal clear that, the heart muscle of the insurer stopped due to dysfunctioning of the cardiac pacemaker. Therefore ground-2 of death of insurer as per annexure-B should be considered to have fallen under Point No. 1 of critical illness. It is also pertinent to consider that dysfunctioning of pacemaker is not excluded under the First Heart Attack ground under critical illness coverage
The OP-2 filed the repudiation letter by refusing to allow the claim money, wherein it is mentioned that six grounds are covered under critical illness. No.1 ground is first heart attack of specified severity.
Previously I have already explained as to why the death of the insurer Subal Ch. Saha is covered under the critical illness. Therefore the repudiation letter dated 04.12.2017 rejecting the claim of the Complainant has successfully been proved as not justified and lawful.
Ld. Defence Counsel for the OP-2 further argued that the insurer Subal Ch. Saha is not customer of OP-2. In case of any compensation HDFC Bank i.e. OP-1 will be liable.
Ld. Advocate for the OP-1 on the contrary argued that OP-1 is in no way connected with the claim repudiation of the Complainant. They are just financer and no previty of contract with the insurance company. The OP-1 instead of making any positive defence pleaded that if any claim of the Complainant is allowed, the insurance company should be directed to pay the amount in favour of the OP-1 and the balance amount shall be paid to the Complainant by the OP-1.
So far as the bank statement is concerned it is found that the deceased insurer regularly made repayment of loans starting from 05.05.2014 to 09.02.2018.
Ld. Advocate for the Complainant rightly argued that different instalments have been credited by the OP-1 Bank during the lifetime of the insurer Subal Chandra Saha.
Ld. Defence Counsel for the OP-2 further argued that until last instalment is paid, the Complainant cannot claim insurance.
Ld. Advocate for the Complainant defended and nullified the said argument on the ground that the death of the insurer is a valid ground for claiming the insurance and as such the Complainant is entitled to get the award.
The argument has reasonable force. The grounds for repudiation of the insurance claim by the Complainant are found to be not established by the OP to defend the case. On the contrary, having assessed the entire evidence on record and the discussion made herein above, this Commission comes to the finding that the Complainant is entitled to get the relief prayed for.
Consequently the complaint case succeeds with cost.
Hence, it is
Ordered
That the complaint case number CC/4/2018 be and the same is allowed on contest with cost of Rs.5,000/-. The Complainant do get an award for the sum of Rs.1,00,000/- towards death benefit under critical illness, Rs.10,000/- towards mental pain and agony and Rs.10,000/- towards deficiency in service. The opposite parties are jointly and severally liable to pay the amount. The opposite parties are directed to pay Rs.1,25,000/- to the Complainant within 30 days (thirty days) from the date of passing the Final Order failing which the opposite parties shall pay an interest @ 6% p.a. from the date of passing the Final Order till the date of realization thereof.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
