Karnataka

Kolar

CC/37/2022

S.Avinash - Complainant(s)

Versus

The Manager, HDFC ERGO general Insurance Company Limited - Opp.Party(s)

29 Apr 2023

ORDER

Date of Filing: 05/08/2022

Date of Order: 29/04/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated: 29^thDAY OF APRIL 2023

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:35/2022

1. Smt. Shailaja,

W/o. S.V. Somashekar,

Aged about 44 years,

Residing at No. 60,

Near APMC Yard,

Bangarpet,

Kolar District-563 114.

 (Rep. by Sri.K.R. Venkatarame Gowda, Advocate) ….  Complainant.

 

- V/s –

The Manager,

Star Health and Allied Insurance Co.Ltd.,

Zonal Office 2^nd  & 3^rd Floor(Above IDBI Bank)

No.184/82,

Dr. Rajkumar Road,

Joganahalli 2^nd Block,

Rajajinagar,

Bengaluru – 560 010.                            

(Rep. by Sri.G.R. Ramachandra Murthy, Advocate)....Opposite Party.

CONSUMER COMPLAINT NO:36/2022

1. Smt. Shailaja,

W/o. S.V. Somashekar,

Aged about 44 years,

Residing at No. 60,

Near APMC Yard,

Bangarpet,

Kolar District-563 114.

(Rep. by Sri.K.R. Venkatarame Gowda, Advocate)  ….  Complainant.

                                               - V/s –

ICICI Lombard GIC Limited,

ICICI Bank Tower,

Plot No.12,

Financial, Nanakram Guda District,

Gachilbowli,

Huderabad,

Telangana – 500032.                                             ...Opposite Party.

 

CONSUMER COMPLAINT NO:37/2022

2. S. Avinadh,

S/o S.V. Somashekar,

Aged about 32 years,

Residing at No.60,

Near APMC Yard,

Bangarpet,

Kolar District – 563 114.

 

                                                          - V/s –

 

The Manager,

HDFC ERGO General Insurance Co.Ltd.,

Registered and Corporate Office,

1^st Floor HDFC House 165/166,

Backbay Reclamation,

H.T. Parekh Marg,

Churchgate,

Mumbai – 400 020.

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1)     The complaints are taken up together as the insured person is the same in all the complaints and the complainants are the nominees to the insurance policies in question being the mother and brother of the insured.  Hence in order to avoid any kind of ambiguity and for fair adjudication, passing common order is highly warranted.   on looking into the nature and facts involved in above cases this forum has empower to consolidate the proceedings by passing a common order when the complainants have same common interest and since in all these complaints the common questions arises, accordingly to avoid repitation of facts and more fully for fair appreciation of the facts of the case, under these circumstances CC.No.36/2022 and CC.No.37/2022 are clubbed in CC.No.35/2022 and taken up together for common discussion and for common orders.

 

2)     That the above complainants have filed these complaints U/s 35 of the C.P Act 2019 against the OPs alleging deficiency in service and praying for direction to the OPs for the following reliefs.

     (a) In CC.No35/2022 to pay a sum of Rs.31,25,000/-along with interest at the rate of 18% P.a. from the date of claim till realization, also praying for direction to pay a sum of Rs.2,00,000/- for suffering mental agony and Rs.25,000/- towards the cost of litigation. 

     (b) In CC.No36/2022 to pay a sum of Rs.10,00,000/- along with interest at the rate of 18% P.a. from the date of claim till realization, also praying for direction to pay a sum of Rs.2,00,000/- for suffering mental agony and Rs.25,000/- towards the cost of litigation. 

     (c) In CC.No37/2022 to pay a sum of Rs.30,10,000/- along with interest at the rate of 18% P.a. from the date of claim till realization, also praying for direction to pay a sum of Rs.2,00,000/- for suffering mental agony and Rs.25,000/- towards the cost of litigation.

3)    The brief facts of the complaint in CC.No.35/2022 is that, the son of the complainant by name Sri. Sandeep. S during the life time had taken the Accidental Care Individual Insurance policy from the OP Insurance Company that is Star Health and Allied Insurance Company on 02/01/2021 bearing policy No.P/141119/02/2021/000049 and the same is valid for the period from 18/05/2021 to 17/05/2022.  It is stated that the said policy was renewed from year by year since the date of inception of the insurance policy i.e. from 04/05/2016.  Further it is stated that complainant is the nominee to the said Insurance policy. 

4)    Also in CC.No.36/2022 that the son of the complainant had taken another insurance policy ICICI LOMBARD bearing insurance policy No……….. and the same is valid from 02.01.2021 to 01.01.2022 and the sum assured is 10,00,000/- .  Further the complainant is the nominee of the said insurance policy.  The year of the inception of the policy is 2021.

5)   Further in CC.No.37/2022 that the brother of the complainant by name Sri. Sandeep. S during his  life time had taken the “HDFC My Health Koti Suraksha” vide policy No.3317204239411400000 from the OP Insurance Company on 29/07/2021 and the same is valid for the period from 29/07/2021 to 28/07/2024.  Further the complainant is the nominee of the said insurance policy.  The year of the inception of the policy is 2021.

6)     Further in all the above complaints it is stated that the insured was died in a railway accident and railway authorities have also filed the “C” report before the competent court.  Further all the complainants in the above cases being the nominees to the above said insurance policies and thereon all the complainants being the nominees filed the claim papers with the respective OP insurance companies.  It is stated that the OPs in all the complaints repudiated the claim on the basis of unwarranted grounds.  Thereafter it is stated that the complainants were approached the Insurance Ombudsman and also got issued the legal Notice to the OPs, despite approached to the Insurance Ombudsman and also by issuing legal Notice, OPs did not honor the insurance claim of the complainants.  Hence these complaints.

 

5)     On issuance of notice OPs appeared through their counsel and filed its version.  In the version it is contended that, the insured was died in a train accident on 19/09/2021 is denied as false and required the plaintiff to prove the same.  Further contended that complainant with the active collision with the railway police have manipulated documents as if it is an accident.  Further contended that OP Insurance Company legally repudiated the claim.  It is contended that on the internal investigation sources they learnt that the family members of the insured and they were forced the insured to marry a girl against his wish and hence insured lost his life by committing suicide.  It is contended that on careful scrutiny and analysis of place of alleged occurrence of accident one can safely conclude that insured was died not due to accident but by committing suicide.  Further contended that in case of UDR, the Taluk Magistrate/ Sub-divisional Magistrate has to be personally present during the postmortem or inquest to be conducted, No such formalities are followed, which raises high suspicion.  Further contended that as per exclusion No.VI (4) of the policy, the company is not liable to make any compensation for death or disablement of the insured person from intentional self injury/suicide or attempted suicide. 

Further contended that, complaint is not maintainable either in the eye of law or on facts.  However the OP admits the issuance of policies and the same is subjected terms and conditions and limitations their under.  Further contended that claim for accidental death does not meet the requirement for its eligibility as per terms and conditions of policy, since the claim is not admissible and loss not payable. 

That one of the OP in CC.No.36/2022 contended that complainant has filed another two similar complaint for the same cause of action in CC.No35/2022 against the Star Health Insurance policy and another complainant in CC.No.37/2022 against HDFC GEN INS CO LTD and this complaint arise out of same cause of action, hence contended that claim is not payable by the OP company.  Further contended that complainant is suppressed material fact that he as obtain policy of Insurance has not mentioned anything about his previous policies.  Hence contended that complainant is making misrepresentation before this Hon’ble commission.  Further contended that there is no cause of action accrued to the complainant. 

6)     It is contended that complainant is not approached to this commission with clean hands.  Further contended that this commission has no jurisdiction to entertain the complaint. It is contended that the brother of the complainant (insured) death was suspecting of the suicide on the basis of their investigation with the aid of photographs and from the scene of incident and hence justifying the repudiation of the claim of the complaint.  It is contended that while taking the insurance policy that the insured did not disclose the fact, that he had multiple policies taken from the other insurers, thereby the complainant misrepresented the facts while availing the policy from the Op. It is specifically contended that the policy in question obtained on 29 July 2021 and the death of the insured occurred on 19 September 2021 and contended that the claim is close proximity. Further contended that insured by suppressing the previous polices got obtained the present policy and hence contended that complainant is making misrepresentation before this commission.

7)     Further on the above said grounds OPs submitted that there is no deficiency in service from their part and finally pray to dismiss the complaints.        

8)       On the basis of the pleadings of the parties and the evidence placed on record, the following points will do arise for our consideration:-

(1)   Whether the complainants have proved deficiency   in service on the part of the OPs in CC.No.35/2022, in CC.No.36/2022 and in CC.No.37/2022?

(2)  Whether the complainants are entitled for the relief as sought in complaints i.e. in CC.No.35/2022, in CC.No.36/2022 and in CC.No.37/2022?

(3)   What Order?

       

        Heard the oral arguments and perused the evidence placed on record.

 

9)     Our answers to the above points are as under:-

POINT No. (1):- In the affirmative with respect to CC.No.35/2022 and in the negative as with respect to CC.No.36/2022 and CC.No.37/2022.

POINT No. (2):- In the affirmative with respect to CC.No.35/2022 and in the negative with respect to CC.No.36/2022 and CC.No.37/2022.

POINT No. (3):-          As per the final order

                                   for the following:-

              REASONS

POINT NO.(1):-  On perusing all the complaints and the version filed by the OPs, it is an undisputed fact that the insured is the son of Smt. Shailaja the complainant in CC.No.35/2022 and CC.No.36/2022 and the brother of the complainant inCC.No.37/2022 and they are nominees to the respective insurance policies in question.  Further it is also an undisputed fact that the insured by name Sandeep. S had taken the following three policies.

 

Case No.	Description of the Insurance policy	Validity period of the policy	Some Insured	Nominee to the policy
	Star Health and Allied Insurance Co. Ltd.	18-5-2021          to		Smt. Shylaja (Mother)
	ICICI LOMBARD	02-01-2021 to		Smt. Shylaja (Mother)
	HDFC ERGO GEN INS CO.Ltd.	29-07-2021 to		S. Avinash (Brother)

 

10)     Further it is also not in dispute for the above said the insurance policies complainants are the nominees and the insured was died in a railway accident on 19.09.2021.  It is also not in dispute that the all the OPs repudiated the claim of the complainant on two grounds firstly with a contention that the insured was committed suicide and secondly that the insured had obtained the subsequent policies without disclosing the fact of earlier policies for the same reason covering the life risk of the insured.    

 

     The crux of the matter is to consider that, whether the insured had a right to obtain multiple policies and thereby nominees of the policies are entitle for the relief as sought in the complaints.

 

11)     As we aware of the fact, that the contract of insurance is comes under the domain of the service, also insurance is a contract, a contract is an agreement is enforceable by law.  Further it is also not in dispute that the insurance policies issued with certain terms and conditions.  It is worth to mention that the very nature of the insurance based on the public policy that is called Uberrima fide- utmost good faith. 

 

12)     It is the main allegation of the complainants in all the cases, that the OPs repudiated the claim on the unwarranted grounds and hence all the complainants were approached the insurance Ombudsman, when no fruitful result and finally complainants were got issued the legal Notice and when the OPs did not honor the claim, which leads to filling of these complaints. 

 

   Per-contra   OPs contended that insured by committing suicide was dead in a railway accident.  Further contended that the insured by suppressing the earlier policies got obtain the other two subsequent policies for the same cause for covering the risk of the insured. 

 

13)     In order to substantiate the case of the parties and both the parties have filed their affidavit evidence along with documentary evidence.  On perusal of the affidavit evidence of the parties and they have deposed re-treating all the facts in their affidavit evidence. However the complainants produced the certified copy of the charge sheet as annexure-2, on perusal of the same the investigation authorities concluded the death of the insured case is as UDR.  Further on perusal of the entire history of the charge sheet, it is no where found that an Iota of evidence to show that the insured died by committing the suicide.  Further in the said  charge sheet as per the opinion of the postmortem report that the insured was died due to HAEMORRHAGIC shock secondary to crush injuries sustained further on perusal of annexure C-9 it is the report of tahashildar dated 14.03.2022 it reads thus “ªÉÄîÌAqÀ «óµÀAiÀÄ ªÀÄvÀÄÛ G¯ÉèÃRPÉÌ ¸ÀA§A¢¹zÀAvÉ, §AUÁgÀ¥ÉÃmÉ vÁ®ÆèPÀÄ §AUÁgÀ¥ÉÃmÉ gÉʯÉé ¥ÉÆðøï oÁuÉAiÀĪÀgÀ DPÀ¹äPÀ ªÀÄgÀtzÀ ¥ÀæPÀgÀt ¸ÀASÉå: 18/2021gÀ CawªÀÄ ªÀgÀ¢AiÀÄ°è ²æà J¸ï. ¸ÀA¢Ã¥ï ©£ï ¸ÉÆêÀıÉÃRgï, £ÀA.2191/2, qÁ: ªÉÃtÄUÉÆÃ¥Á® gÉÆÃqï, ¨sÉÆë£ÀUÀgÀ, §AUÁgÀ¥ÉÃmÉ gÀªÀgÀÄ gÉʯÉé ºÀ½ zÁlĪÀ ¸ÀAzÀ¨sÀðzÀ°è DPÀ¹äPÀªÁV gÉ樀 C¥ÀWÁvÀzÀ°è ªÀÄÈvÀ ¥ÀnÖgÀÄvÁÛgÉAzÀÄ CawªÀÄ ªÀgÀ¢ ¸ÀASÉå: 06/2022 ¢£ÁAPÀ: 20/01/2022gÀ CAwªÀÄ ªÀgÀ¢AiÀÄ°è w½¹ CAVÃPÀj¸À®Ä PÉÆÃjgÀÄvÁÛgÉ. And this letter addressed to the concerned insurance company.  However in CC.No.36/2022 that the OPs produced certain photographic images and on perusal of the same when the train is coming for a distance the photograph clearly depict that complainant was making an attempt for crossing the railway lane and almost crossed the lane as depicted in the photographic image No.09 and it cannot be concluded that complainant committed suicide as per the photographic  image, on perusal of the same, it made us to draw inference that the complainant was with an intention to cross the railway lane but unfortunately died in an accident.  on the basis of the  charge sheet as well as letter of the Tahashildar dated 14.03.2022 address to the insurance company and on perusal of all the documents placed on record we reach to conclusion that complainant died in an unfortunate accident.  Hence the insurance companies’ contention cannot be acceptable that the complainant was committed suicide.   

 

14)     Further as seen from the available evidence on record as we discussed above it is an undisputed fact that the insured had obtained the three different policies as shown in the above table.  The crux of the matter is to consider whether the nominees of the insurance policies are entitle for the claim? 

15)     On perusal of the three insurance policies obtained by the insured that is with respect to CC.No.35/2022 the policy bearing No.P/141119/02/2022/000051 dated 11.05.2021 and the validity period is 18.05.2021 to 17.05.2022.  It is worth to note that the inception said policy is 04.05.2016 and the said policy renewed from time to time.  Further when the insured died on 19.09.2021 due to railway accident  and the above said policy is in force at the time of death and obviously covering the of the risk insured and hence it cannot be considered the policy obtained was after thought and the OP insurance company that is in CC.No.35/2022 cannot exonerate its liability.  Further non-honoring the claim of the complainant with respect to CC.No.35/2022 and the reasons discussed above, it amounts to deficiency in service on the part of the OP.

 

16)     Furthermore on perusal of the insurance policy relating to CC.No.36/2022 bearing policy No.4005/M/Phonepe/213223485/00 validity period is 02.01.2021 to 01.01.2022 and the date of the inception of the policy is 02.01.2021 and in CC.No.37/2022 bearing policy No.3317-2042-3941-1400-000 validity period is 29.07.2021 to 28.07.2024 and the inception date of the policy is 29.07.2021 from these dates the above said two polices had taken by the insured during the year 2021 itself.  On perusal of these policies also discloses that the life of the insured covered in these policies also.  That the counsel for the OPs insurance company vehemently argued that insured cannot take more than one policy for the same cause covering the risk of the insured, whereas counsel for the complainant to resist the contention of the OPs regarding multiple policies he draw our attention to the reported decision of the Hon’ble National Commission decided in the case of Kamala Devi and another v/s Tata AIG Life Insurance, it is held that non discloser of previous policies by the life assure is not fatal to the complainants on perusal of the entire facts of the case it is learnt that the insured in the above said case obtained the policies from the same agent and hence it is held that non discloser of the previous policy is not fatal, whereas in the present case on hand it is not the case of the complainants that the policies in question were obtained from the same agent or from the same insurance companies and hence the facts involved in the above case is quite different from the facts on hand and hence with a due respect to the decision of the Hon’ble National Commission we are of the opinion of that the ratio of the above case cannot be made applicable to the present case on hand.     

 

17)     In our view insured has got every right to take multiple policies but subject certain terms and conditions.  Whereas the complainants in the above said cases did not discloses in the complaint or in the evidence why the insured has taken two policies for the same cause when the insured was already insured his life with respect to case of CC.No.35/2022 and also complainants are silent and not whispered anything in the evidence.  Hence the OPs insurance company in CC.No.36/2022 and CC.No.37/2022 rightly canvassed that the subsequent policies obtained by the insured for the same cause cannot be taken into consideration.  It is worth to note that as we discussed supra insurance based on the public policy that is Uberrima fide - utmost good faith.  Further it is the obligation of the complainant to prove deficiency in service and the burden lies on the complainant.  Whereas the complainant did not placed any cogent evidence about the discloser of the facts to the effect that, while obtaining the subsequent policies in question disclosed the fact of earlier policy relating to CC.No.35/2022.  Furthermore it is not the case of the complainants in CC.No36/2022 and in CC.No37/2022 that the insured had obtained the policies from the same agent or from the same insurance company in order to appretiate the case of the complainants.  The insurance companies are functioning on the public funds and while honoring the insurance policies they will take all due care to protect the public interest and the public funds by imposing certain terms and condition.  As we discussed supra when the parties entering to the contract of insurance and it is duty bound to them to disclose the all the material facts without suppression of the true facts.  However the complainants in CC.No.36/2022 and in CC.No.37/2022 fail to produce any cogent evidence that the insured disclosed all the material fact regarding the earlier policy to the OP.  More over that the complainants in their pleadings or in the affidavit evidence failed to disclose about the earlier policy while obtaining the subsequent policies.  On the basis of above discussion we reach to conclusion that complainants in both the cases failed to prove any deficiency in service on the part of the OPs.  Hence the complaint against OPs in CC.No.36/2022 and in CC.No.35/2022 is hereby dismissed.  Accordingly we answered the point No.(1) In the affirmative with respect to CC.No.35/2022 and in the negative with respect to CC.No.36/2022 and CC.No.37/2022.

 

Point No. (2):- As seen from the discussion made while answering point No.1 that the complainant proved deficiency in service on the part of the OP in CC.No.35/2022 and complainant failed to prove deficiency in service on the part of the OPs relating to CC.No.36/2022 and CC.No.37/2022.  Further on perusal of the insurance policy with respect to CC.No.35/2022 the validity period of the policy commencing from 18.05.2021 to 17.05.2022 and the death of the insured occurred on 19.09.2021 when the policy is in force.  Hence the OP insurance company as per the sum assured in the policy liable to pay the complainant.  On perusal of the policy the sum assured is Rs.25,00,000/-(Twenty Five Lakhs only), whereas the OP insurance company without honoring the claim made the complainant to wander from pillar to post and hence complainant obviously suffered sort of mental agony and hence she is entitled to interest at the rate of 8.5% p.a on the sum assured amount and Rs.5,000/- towards the cost of the proceedings.  Accordingly we answer the point No. (2) In the affirmative with respect to CC.No.35/2022 and in the negative with respect to CC.No.36/2022 and CC.No.37/2022.

 

Point No. (3):- On the basis of reasons assigned while answering the point No.(1) & (2)  and orders thereon, we proceed to pass the following.

                                      ORDER

1. The complaint in CC.No.35/2022 is hereby allowed with cost and the complaint in CC.No.36/2022 and CC.No.37/2022 is hereby dismissed.  No order as to cost.
2. That the OP that is Star Health and Allied insurance company is hereby directed to pay a sum of Rs.25,00,000/-(Twenty Five lakhs only) along with interest at the rate of 8.5%p.a from the date of repudiation till realization of the insured amount with interest to the complainant.
3. The OP is directed to pay Rs.5,000/- towards the cost of the proceedings.
4. Further OP in CC.No.35/2022 is hereby directed to comply the orders of this Commission within 30 days from the date of receipt of orders and to submit the compliance report within 45 days to this Commission.
5. Further office is directed to keep the original copy of this order in CC.No.35/2022 and certified copies in CC.No.36/2022 and CC.No.37/2022.
6. Send copies of this order to all parties at free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 29^th DAY OF APRIL 2023)

 

 

 

 

   LADY MEMBER                   PRESIDENT