Date of Filing:16.12.2008<br /> Date of Order: 30.06.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 30TH DAY OF JUNE 2010<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> <br /> COMPLAINT NO: 2715 OF 2008 <br /> <br /> <br /> Mrs.Jyothi Sudhir, <br /> W/o Late Sudhir Salian,<br /> R/at No.CF-43, “Ittina Neela”<br /> Andapura Village, Near Sampigenagr,<br /> Electronic City Post, Hosur Road,<br /> Bangalore-560 100. Complainant<br /> <br /> V/S<br /> <br /> 1) The Branch Manager,<br /> Kotak Mahindra Prime Limited,<br /> No.20, 3rd Floor, Uniworth Plaza,<br /> Sankey Road, Bangalore-20.<br /> <br /> 2) Kotak Life Insurance<br /> No.102/104, 1st Floor, Cears plaza,<br /> Residency Road,<br /> Bangalore-25. Opposite Parties<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The brief facts of the case are that, the complainant’s husband, Mr. Sudhir Salian had availed car finance from the 1st opposite party on 17-8-2007 of Rs.4,96,630/-, repayable with EMI of Rs.11,248/-. The employee of opposite party No.1 approached Mr.Sudhir Salian seeing his chronic ill-health, advised him to avail loan so that group insurance policy with the opposite party No.2 will provide coverage to the extent of outstanding loan amount and in the event of death of the borrower. Impressed by the advice, the complainant’s husband had taken policy. After the payment 4 EMIs borrower Mr.Sudhir expired on 3-11-2007. The complainant submitted the claim with the opposite party No.1, however, the op No.1 repudiated the claim on the ground that the borrower has not disclosed pre-existing disease at the time of signing the declaration / agreement. Notice was issued to the opposite party. The opposite party has not considered the claim. Hence, the complaint for the relief that on account of death of complainant’s husband a set off be given outstanding loan amount and to repay the installment recovered from the complainant. <br /> 2. The opposite party has filed defense version stating that, it is the duty of the policy holder to disclose the fact of the chronic disease. The fact of illness had not been disclosed at the time of taking the policy, on the contrary the borrower has submitted the good health declaration. The complainant is not entitled for any relief. There is no cause of action to file complaint. The opposite party No.1 request to dismiss the complaint. The opposite party No.2 in a separate version stated, that policy will obtained by suppressing material information about health. There is no deficiency of service on the part of the opposite party. The complaint is not maintainable. The complainant’s husband was suffering from “Premitive Neuroectodermal Tumour” at-least from 24-4-2007 much prior to the risk commencement cover under the policy. The medical papers issued from Bangalore Institute of Oncology disclosed you are suffering from cancer. The deceased by signing the declaration confirmed that he was in good health and based on that the opposite party No.2 provided insurance cover. The policy was obtained by suppressing the material fact about the health. The complainant is not entitled for any relief. Therefore, the opposite party also prays to dismiss the complaint. <br /> <br /> 3. The respective parties have filed affidavit evidence and documents. I have gone through the pleadings, documents and affidavit evidence. Heard, the arguments on both the sides. <br /> <br /> <br /> <br /> 4. In the light of the arguments advanced by the learned Advocates for the respective parties, the following points arise for consideration:-<br /> <br /> 1. Whether the complainant has proved deficiency of service on the part of the opposite party?<br /> 2. Whether the repudiation of claim by the opposite party is justified?<br /> 3. Whether the complainant is entitled relief?<br /> 4. What order and relief?<br /> <br /> REASONS<br /> 5. The opposite party has produced car loan application submitted by Mr. Sudhir Salian. The learned advocate for the opposite party brought to our notice declaration of good health of the borrower given by Mr.Sudhir Salian. In this declaration of good health it has been stated that the declarent was in sound health and does not have any physical defect, deformity or disability. He has declared that he was not suffering from any disease and he had not received any treatment or expected to receive any treatment. The declaration of good health further states if any untrue averment be contained herein, the heirs, executors, administrators or assignees shall not be entitled to receive any benefits which may be provided to the borrower on the faith of this declaration including insurance cover. This declaration of good health signed by Mr.Sudhir on 17-8-2007. The opposite parties have produced medical documents of Mr.Sudhir to show that he was suffering from cancer much earlier to taking policy and loan. Triesta Reference Laboratory papers have produced. Pet Sensation, Center for molecular imaging dated 13-8-2007 report has been produced. Mr Sudhir had undergone whole body PET scan on 13-8-2007. The death certificate of Mr.Sudhir has been produced. Mr. Sudhir had died in the Hospital on 3-11-2007. As regards the ill-health and suffering from chronic ill- health there is ample evidence and documents. The complainant herself has stated in her complaint that her husband was suffering from ill health and the opposite party No.1 employee approached him in the house and seeing his chronic ill health and advised him to take car loan with insurance coverage. These facts clearly establish that Mr.Sudhir was not well he was under treatment and he was suffering from ill health before obtaining car loan policy. The deceased was educated person, he was working in Infosys Company, he had executed a false declaration of good health, knowing full well that he was patient and suffering from ill health. A person who had suppressed his ill health and given false declaration before obtaining policy, how can he take benefit of the policy? In the declaration itself it has been clearly stated that if any untrue statement is made the heirs, executors, administrators shall not be entitled to receive any benefit under the policy. So under these circumstances the repudiation of the claim put up by the complainant can not be said as a deficiency of service on the part of the opposite party. The opposite parties are right in repudiating the claim. The complainant who is a wife of the deceased is not entitled to any benefit under the policy. Therefore, the complaint deserves to be dismissed. The complainant is a widow and she lost her husband in a very young age. The Fora has got utmost sympathies towards the complainant, but we are bound by the law of the land and the agreement and the documents. Therefore, we are unable to grant any relief to the complainant. However the opposite party No.1 the finance institution in its discretion can reduce the rate of interest of car loan on account of sad death of borrower. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The complaint is dismissed. No order as to costs. <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 30TH DAY OF JUNE 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> I concur the above findings <br /> <br /> MEMBER <br /> <br />