Date of filing:04.01.2022

                                                               Date of Disposal:14.03.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 14^th DAY OF MARCH, 2023

CONSUMER COMPLAINT NO.02/2022

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

W/o. Late: Nataraju.T.G,

Aged About 36 Years,

R/at. No.77/1, 3^rd Cross,

Behind Shanimahathma Temple,

Behind Shanimahathma Temple,

Bangalore-560 057.……COMPLAINANT

Rep by Sri.Sandesha.A.S, Advocate

1) The Manager,

M/s. Royal Sundaram General

Insurance Company Limited,

Office at No.2/319,

Vishranthi Melaram Towers,

Rajiv Gandhi Salai (OMR),

Karapakkam, Chennai–600 097.

Rep by Sri.Prashant.T.Pandit, Advocate

2) The Manager,

M/s. Sundaram Home Finance Limited,

Office at No.1947, New No.19,

IInd Floor, 9^th Block, 28^th Main,

South End D Main Road, Jayanagar,

Bangalore – 560 069.

Rep by Sri. R. Radha, Advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

1.      The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party No.1 to pay insurance claim amount of Rs.15,00,000/- and for a direction to OP No.2 to pay Rs.1,00,000/- as compensation towards inconvenience and such other relief as this Commission deems fit in the circumstances of the case.

2. It is not in dispute that the complainant and Nataraju.T.G are husband and wife and OP No.1 is the General insurance company and OP No.2 has financed to the complainant for the construction of the home.  Further it is not in dispute that, the complainant’s husband had borrowed the loan of Rs.15,00,000/- from OP No.2 on 23.07.2019 and the husband of the complainant had purchased life insurance policy in his name from OP No.1 for a sum of Rs.15,00,000/- by giving security of the house against the accidental death of insured.  Further the policy was under the scheme Suraksha Kawach and it was issued on 21.08.2019.  Further complainant’s husband died on 19.04.2021 due to Covid-19 and at the time of death, the insurance was in force.  Further it is not in dispute that, since the insured died out of Covid-19 the OP has repudiated the claim of the complainant.

3.      It is the further case of the complainant that, the deceased has made up to date EMI payment until his death and after the death, OP No.1 started to harass the complainant by sending notice calling upon to make payment of loan outstanding.  Even though the complainant claimed the assured amount of Rs.15,00,000/- OP No.1 repudiated the claim.

4.      It is the further case of the OP Nos.1 & 2 that, the hospitalization of the insured was not accidental in nature and the death was due to natural reason and not due to occurrence of any accident.  Hence the legal representative of the deceased is not entitled for the policy insured.  Hence, sought to dismiss the complaint.

5. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P7 documents.   The authorized signatory of OP No.1 (RW1) has filed affidavit in the form of its evidence in chief and got marked EX.R1 to R4 documents. 

6. The counsel for OP No.1 has filed written arguments with citation.

         7. The points that would arise for consideration are as under:

  (1) Whether there is deficiency of service on the part of the opposite party No.1 & 2?

  (2) Whether the complainant is entitle for the 

    relief as sought ?

       (3) What order ?

  8.  Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

9.POINT NO.1:- The complainant (PW1), OP No.1 (RW1) and OP No.2(RW2) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  EXR4 is the letter of repudiation dated: 22.12.2021.  It is stated in the EXR4 that, as the death was due to Severe ARDS, Covid 19 pneumonia and Sepsis and Septic Shock and in the absence of the post-mortem report the cause of death could not be established and proved and the policy covers death due to any bodily injury resulting solely and directly from the accident caused due to external, violent and visible means, and not natural death as in this incident caused, hence the claim of the complainant was repudiated.

10.        It is the contention of the learned counsel for the complainant that, Covid-19 disease was not foreseen and it was an accidental one, therefore the meaning given in the terms of the policy covers the death due to Covid-19.  Hence the OP No.1 is not correct in repudiating the claim.  In this regard counsel relies EXP2 certificate of insurance, in its conditions in column No.3 with regard to the Basic Cover.  It is stated in Section 3.1 that, if the insured person suffers an injury solely and directly due to an accident occurring during the policy period which solely and directly results in the insured person’s death the company will pay the sum insured specified in the policy schedule/certificate of insurance.  Further in the definition of the policy Under Section 2 it is stated that, accident means a sudden, unforeseen and involuntary event caused by external, visible and violent means.   

11.        The counsel for OP relied much on the medical certificate produced by the complainant vide EXP3 in which it is mentioned that, cause of death was Severe ARDS and Covid-19 pneumonia and Sepsis and Septic Shock and it is also mentioned that, the injury occurred naturally.  We feel for mere because it is mentioned in the medical certificate that, the manner of death was natural, it cannot be a conclusion to prove that, the death was not result of the accident.

12.        It is not said in EXP2 the certificate of insurance in the definition of accident that, it shall only be a motor vehicle accident.  We feel any kind of incident unforeseen and involuntarily causes would come within the meaning of accident.  Therefore death due to Covid-19 cannot be excluded within the definition of accident given in the policy.

13.        Contrary to the contention of the learned counsel for the complainant, counsel for OP relies the judgment rendered by the Hon’ble Apex Court reported in 2019 (3) ABR 667 Branch Manager, National Insurance Company limited Vs. Smt. Mousumi Bhattacharjee.  In the said case the death was due to encephalitis malaria caused by mosquito bite and the insured was based from malaria prone area.  Hence it is observed by the Hon’ble Apex Court that, illness of deceased was neither unexpected nor unforeseen.  Further disease was caused or transmitted in the natural course of events.  Thereby it is held that, the policy does not cover within the definition of an accident and disease would not cover within the definition of accident.  The facts of the case cited in the judgment and the facts of the case on hand is entirely different.  Therefore the same is not applicable to the facts of the case on hand.  For the above said reasons we feel OP No.1 would have entertained the claim of the complainant.  Therefore there is a deficiency on the part of OP No.1.  Accordingly we answer this Point No.1 in Affirmative.

14.        POINT NO.2:-     The complainant claims direction to OP No.1 to pay insurance claim amount of Rs.15,00,000/- to the complainant.  We feel since the loan borrowed by the deceased being covered for the special policy issued by OP No.1, OP No.2 is entitled for the claim amount.  According to OP No.2 the deceased has availed the home loan of Rs.15,99,000/- on 13.07.2019 and the sum assured by OP No.1 was Rs.15,00,000/- under Suraksha Kawach insurance policy and the said policy was in force on the death of the complainant’s husband.  Further since the deceased was not regular in paying the EMI, OP No.2 had classified the loan account as NPA and initiated the proceedings in SARFAESI Act and the same cannot be termed as a threat as alleged by the complainant.  We feel OP No.1 has to pay the outstanding loan of the deceased on the date of his death to OP No.2 to the extent of the insured amount of Rs.15,00,000/-.  Further the complainant is entitled for the remaining amount being the amount assured after discharge of the outstanding loan payable to OP No.2.  The complainant claimed a sum of Rs.50,000/- towards the cost of the proceedings and Rs.1,00,000/- towards mental agony.  We feel OP No.1 should have honoured the claim of the complainant by paying the outstanding loan to OP No.2.  Since the outstanding loan was not paid and EMI was also not been paid, OP No.2 had initiated SARFAESI proceedings.  Therefore the complainant was put to mental agony and inconvenience.  For that, OP No.1 has to pay a sum of Rs.20,000/- to the complainant.  Further the act of the OP No.1 made the complainant to approach this Commission for the relief in question.  Hence OP No.1 has to pay a sum of Rs.10,000/- towards litigation expenses.  Accordingly we answer this Point partly in the Affirmative.

15.        POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

ORDER

The complaint is allowed in part.

The opposite party No.1 is directed to pay the outstanding loan stood in the name of the deceased Nataraju T.G on the date of his death on 19.04.2021 to OP No.2 and if any amount remains within the assured sum of Rs.15,00,000/- the complainant is entitled for the same. 

Further OP No.1 shall pay a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost to the complainant.

The opposite party No.1 shall comply the order within 30 days.   In case, the opposite party No.1 fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 14^th day of March, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Smt.Pushpalatha A.S, the complainant has filed her affidavit.

Documents marked for the complainant side:

1. Copy of home loan sanction letter dated: 23.07.2019.
2. Copy of Life Insurance certificate
3. Copy of medical certificate of cause of death
4. Copy of death certificate
5. Copy of application dt.06.09.2021 along with postal receipt and acknowledgment
6. Copy of request letter dt.08.12.2021 along with postal receipt and acknowledgment
7. Copy of reply dt.22.12.2021

Witness examined for the opposite party No.1 side: 

Sri. Sudhakara.H, State Head Legal in OP-1 has filed affidavit in the form of his evidence in chief. 

Documents marked for the Opposite Party side:

1. Letter of authorization dt.05.06.2022

2. Copy of the policy

3. Copy of the policy wordings

4. Copy of the repudiation letter dt.22.12.2021

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•