Karnataka

Kolar

CC/34/2022

Smt.Chaitra.B.K - Complainant(s)

Versus

The Manager,Kotak Mahindra life Insurance Company Ltd - Opp.Party(s)

27 Jun 2023

ORDER

Date of Filing: 05/08/2022

Date of Order: 27/06/2023

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

 

Dated:27^thDAY OF JUNE 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:34/2022

 

Smt. Chaithra B.K.

W/o. Suresh D.E,

Aged about 31 years,

R/at: #143, Doddahasala Village,

K.N. Sanitorium Post,

Kasaba Hobli ,

Kolar Taluk,

Kolar District.

(Rep. by Sri. Chandrappa, Advocate)                    ….  Complainant.

 

 

- V/s –

 

1)  The Manager,

Kotak Mahindra Life Insurance Co.Ltd.,

Bengaluru-Vijayanagar, Shop No.1557,

1^st Floor, Ujjini Pegasus situated at 8^th Cross,

Opposite to BMTC Bus Depot,

Chandra Layout,

Bengaluru-560040.

 

2)   The Manager,

Kotak Mahindra Life Insurance Co.Ltd.,

CIN:U66030MH20000PLC128503,

Regd. Office: 2^nd Floor, Plot #C-12,

G-Block, BKC, Bandra(E),

Mumbai-400051.    

(Rep. by Sri. B.Kumar, Advocate for OP 1 & 2)  …. Opposite Parties.

 

 

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1)     That the complainant has filed this complaint U/s 35 of CP Act 2019 against the OPs Insurance Company and praying for directions to the OPs to pay a sum of Rs. One crore along with interest at the rate of 12% P.a from the date of filling the complaint till realization.

2)  The brief facts of the complaint is that, the husband of the complainant by name of Suresh D.E during his life time, he had taken the insurance policy bearing policy No.9804601 by paying premium amount of Rs.9,300/- and accordingly he is agreed to pay premium amount for 40 installments till attaining his age up to 72 years.  That the OPs agreed to pay Rs. One crore in the event of death of the insured to his nominee.  It is stated that, at the time of availing the insurance policy from the OP that the husband of the complainant was heal and healthy and he was taken the policy at the age of 32 years and validity period of the policy was commenced from 27.02.2019.  it is stated that, at the time of obtaining the policy insured D.E. Suresh was also under gone medical test through OP insurance company agent and accordingly the concerned doctor were also issued medical fitness certifies by declaring insured was hale and healthy.  Further stated that the insured was died on 03.02.2021 and thereafter, complainant approached the OP for insurance benefit as promised, but the OP did not process the claim and repudiated the claim of the complainant on 22.10.2021.  Hence the complainant got issued the legal notice to the OPs and the same was duly served on them.  It is stated that, OP No.2 only had given the untenable reply to the complainant on 15.03.2022.  Hence this complaint.

3)  On issuance of notice OPs appeared through their counsel and filed their version.  In the version it is contended that, the matter goes to the very root of maintainability of the complaint before this Hon’ble Commission.  It is contended that the OPs managers have no privity of contract with the complainant.  Further contended that claim related decisions and obligations or the call of the company and the Kotak Mahindra life insurance company Ltd., is only answerable to the claim.  It is contended that, complaint is not maintainable as the complainant by suppressing the material fact by this complaint.  It is contended that, at the time of filling the proposal on 29.01.2018 the information given by the insured was established to be incorrect on the basis of conducting the statutory investigation and the OPs have acted in accordance with the statutory provisions and hence contended that, there is no deficiency of service from their part.  Further contended that, the policy issued as per the proposal form dated 29.01.2018 believing to be true and correct and the same was issued with good faith, but during the course of statutory investigation it came to the light that the deceased life assured with a malafide intention and by suppressing the actual facts got obtained the insurance policy in question.

4)     It is contended that on investigation it is come to their knowledge that the insured prior to obtaining the policy he was suffering from Lower Eyelid Adeno carcinoma diagnosed in 2015 and was undergoing chemotherapy since 2015 and had also undergone 4 cycles of chemotherapy.  Which is much prior to the signing of the proposal form and before risk commencement of the policy.  Hence, contended that information and details disclosed by the life assured in the proposal form was wrong and contrary to the facts were found during the course of investigation of the subject.  It is also contended that, material facts were deliberately conceded in the proposal form submitted by the life assured, despite the fact that were specific questions asked in this regard in the proposal form and the same was done with an intension to deceive the OPs.  Hence contended that, claim of the complainant has been repudiated on the grounds of non discloser of material facts regarding the pre-existing health condition and medical ailment of life assured.  Further contended that complainant has failed to demonstrate any deficiency in service on the part of the OPs.

5)     It is also contended that, if the LA would have disclosed the correct information with regard to health condition, subject policy would not have been issued at all.  It is contended that undisclosed that vitiates the policy and renders it invalid, void and is unenforceable in law.  

6)  It is contended that OPs received duly filled online proposal form dated 29.01.2018 along with signed declaration form from the deceased LA Mr. Suresh D.E for issuance of a policy under Kotak-E-term plan.  That based on the details and declaration mentioned in the proposal form and believing same to the true and correct, the subject policy was issued to the LA.  It is contended that within a fee look period provided by IRDAI, the LA never approached the OP with any questions regarding policy documents or the answers mentioned in the proposal form made them to believe that the information given is correct accordingly policy issued with basic sum assured is Rs.10,000,000/-.  It is contended that life assured by suppression of material facts obtained the policy and also concealing the fact of Eyelid Adeno carcinoma diagnosed in 2015 and was undergoing chemotherapy since 2015 and had also undergone 4 cycles of chemotherapy.  Hence it is contended that life assured obtained the policy contrary to the insurance terms and conditions.  Further OP also admitted the issuance of legal notice and the reply notice.  Ultimately contended that, there is no cause of action accrued to the complainant.  Based on the above grounds OPs finally pray to dismiss the complaint.

7)     In order to prove the case of the parties and both the parties filed their affidavit evidence along with documentary evidence.

 

8)     On the basis of the pleadings of the parties the following points will do arise for our consideration:-

1. Whether the complaint is maintainable before this Hon’ble Commission?
2. Whether the complainant has proves that deficiency in service on the part of the OPs by not honoring the insurance claim to the nominee of the insurance policy?
3. Whether the complainant is entitle for the relief as sought in the complaint?
4. What order?

       

We have heard the arguments of the both the parties perused the evidence placed on record and our answers to the above points are as follows:

 

 

 

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

POINT NO. (1):-         In the affirmative.

POINT NO. (2) & (3):- In the affirmative.

POINT NO.(4):-    As per the final order for the following

                                    REASONS

10)  POINT No. (1):  On perusal of the pleadings of the parties, it is not in dispute that the husband of the complainant by name Suresh D.E was taken the insurance policy that is Kotak e-term plan on 27.02.2019 bearing policy No.9804601 and the sum assured is Rs.10,000,000/-.  It is also not in dispute that the complainant is the wife of the deceased insured and she is the nominee of the said insurance policy.  That the complainant subsequent to death of the insured and being the nominee approached the OPs in order to claim the insurance amount but the OPs repudiated the claim on the ground of suppression of earlier decease and it leads to filing of this complaint. 

11)  That the OP contended that the claim amount is Rs.10,000,000/- and hence vehemently argued that this commission as no jurisdiction to entertain the complaint and strikes the root of this Commission in respect of maintainability of the complaint. 

12)   On perusal of the definition of service and the CP Act. 2019 and Section 2(42) it leads thus “ Service means, service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

13)    As per the definition of consumer “consumer means as defined Under Section 2(7) relating to service (ii) any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

14)   On analyzing the facts of the above case of the parties in the light of above definition of consumer and the service, the present complaint obviously comes under the domain of the consumer protection Act.  Furthermore when there is dispute between the insured and the insurer the case comes within the purview of the CP Act.  Hence, the complaint is maintainable before this commission.  Accordingly we answered this point No.(1) in the affirmative.

15)   POINT No.(2):  In order to substantiate the case of the parties and both the parties have filed their affidavit evidence.  On perusal of the affidavit evidence of the both the parties and both the parties almost deposed in their evidence the same facts as averred in their pleadings. 

16)   It is the specific allegation of the complainant is that, whose husband (insured) was obtained the Kotak e-term plan policy and the complainant is the nominee of the said policy.  Further alleged that despite having insurance policy and the same is intact at the time of death of the insured but the OPs having no reasons repudiated the claim.  Further it is not in dispute that, the complainant is the nominee of the insurance policy in question.  It is well known fact that insurance is contract and it binds both the parties.  It is worth to mention that, once nominee is declared by the insurer to the insured and the insurer accepted the same, whenever some unfortunate incident is occurred, the nominee is entitled for the benefits of the insurance policy as promised.  Hence the complainant being the nominee approached the OPs in order to claim as per the coverage of the insurance policy as assured.  However, the OPs repudiated the claim on the ground that, the cause of death was mentioned as heart attack in the claim intimation form.  Further contended that, on their investigation life assured was suffering from “diagnosed with Lower Eyelid Aden carcinoma”, and the first diagnosis of sebaceous carcinoma was in 2015 for which surgery was done on the deceased was referred to Hyderabad centre for sight, also the deceased was refereed for re-surgery at Apollo Hospital, Hyderabad and 4 Chemotherapy was done in centre for sight further contended that, deceased life assured was undergoing chemotherapy since 2015 and had gone through 4 cycles of chemotherapy which is much prior to the issuance of the subject policy.  On the above said grounds OPs treated the same as suppression of material fact while obtaining the policy in question, ultimately repudiated the claim.  Whereas the complainant counsel vehemently argued that, complainant was hale and healthy at the time of obtaining the policy and the agents doctor also certified the fitness of the insured and the same is not denied by the OPs.  That the insured was got obtained the treatment in question during the year 2015 for his eye problem only.  Furthermore OPs did not place any medical records to show that detailed treatment taken by the deceased for his Eyelid problem in order to repudiate the claim.  The position of law is that, once policy is issued the burden heavily lies on the insurance company to disprove the case of the complainant by placing cogent evidence.  Whereas the OPs did not place any cogent evidence to demolished the case of the complainant and in absence of cogent evidence the contention of OP insurance company cannot be acceptable one.   

17)     On perusal of the insurance policy it discloses that, the said policy obtained on 27.02.2018 by the deceased after 3 years of the alleged treatment for Eyelid and the basic sum assured is Rs.One Crore and the date of maturity is shown in the policy is 27.02.2050, the premium paid Rs.10,148/- and the complainant is the nominee, further the said policy is yearly renewed regularly till death of the insured.   Further the death of insured was occurred on 03-02-2021 due to heart attack as seen from the records. Further it is to be considered that, whether the repudiation by the insurance company is justifiable one?  

         Further as per the law established that the burden is on the insurance company to prove its case.  Firstly that the insurance company failed to produce the relevant medical records in respect of taking the treatment taken by the deceased for his eyelid problem and underwent chemotherapy despite sufficient opportunity.  Further, though there is no records to establish the close nexus of taking treatment of Eyelid problem and undergoing chemotherapy during the year 2015 as contended and to causing of heart attack during the year 2021, in absence of cogent evidence the contention of the OP regarding suppression of material fact holds no water.   That the policy in question was obtained on 27.02.2018 and death of the insured was occurred on 03.02.2021  hence under this circumstances the arguments and the grounds put forth by the OPs cannot be acceptable one in the absence cogent evidence.  Further it is the duty of the insurer to honor the claim once the policy issued and the repudiation justifiable only if there is cogent reasons and evidence.  Hence the contention raised by the OPs is not acceptable one. 

18)    In order to substantiate the case of the complainant, complaint relied of the decision of the State Commission Prakasam District based on the decision of the Hon’ble Apex Court in the case of “Life Insurance Corporation of India V/s Smt. G.M Channa Basamma reported in 1991 Supreme Court cases page 357 rendered on Section 45 of the Insurance Act, that, the Hon’ble State Commission considered the above Apex Court Judgment in the case of Rayani Ramajaneyalu, Prakasam V/s 1. The C.E.O & Director, Sahara on 31.10.2013.  It is held that, policy not to be called in question on ground of miss statement after 2 years.   As is in the present case on hand policy was taken on 27.02.2018 and the life assured died on 03.02.2021 and as such, the OP Insurance Company is liable to pay her (nominee) death benefit.  Further, No policy of life insurance effected before commencement of this Act and No policy of life insurance effected after the coming into force of this Act, shall, after the expiry of 2 years from the date on which it was effected be called in question by an insurer on the ground that statement made in the proposal or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy was in accurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that policy holder knew at that time of making it that the statement was false or that it suppressed fact which it was material to disclose.   

19)    The ratio of the decision of the above Hon’ble Apex Court is aptly applicable to the present case on hand.  Further in view of the above discussed facts and circumstances and having regard to the ruling of the Apex Court referred to above and provisions of Section 45 of the Insurance Act, in our considered view that the OP Insurance Company cannot question the subject policy after expiry of 2 years from the date on which it was effected that is 27.02.2018.  Admittedly the policy holder died on 03.02.2021 due to Heart Attack after 3 years of the policy.

20)     For all the aforesaid facts and circumstances, we are of the view that there is deficiency in service on the part of the OPs against the complainant in repudiating the claim of the complainant.  The OP party Insurance Company of therefore, liable to pay the assured sum under the policy to the complainant who is the nominee.  On the above discussed facts and reasons assigned, we reach to conclusion that the OPs are not justifiable in repudiating the claim and committed deficiency in service.  Accordingly we answered the Point No. (2) In the affirmative.

21) POINT NO. (3):-  On perusal of the evidence placed on record it is not in dispute that the complainant husband by name Suresh D.E was taken the insurance policy from the OP on 27.02.2018 and bearing policy No.09804601 by paying premium of Rs.10,148/- and the insured renewed the policy regularly till his death.  It is also not in dispute the sum assured is Rs. One Crore and the complainant is the nominee to the said policy.  Hence the complainant is entitled for the benefit of the policy. 

22)  Further as we discussed supra and the reasons assigned while answering the Point No. (1) That the OPs repudiated the claim is not justifiable one and also the Hon’ble Apex Court held that, insurance company cannot question the subject policy after expiry of 2 years from the date on which it was affected.  On perusal of the insurance policy and has an admitted fact the sum assured is Rs.One Crore and hence OPs are liable to pay the sum assured to the complainant (Nominee) under the coverage of the policy.  Accordingly we answered the Point No. (3) Is in the affirmative.

23) POINT NO. (4):-   On the basis of the answering the point No.(1) to (3) are in affirmative and we proceed to pass the following order:

ORDER

1. The complaint is hereby allowed with cost.
2. OPs Insurance Company “Kotak Mahindra life Insurance company Limited” represented by Op No.1 & 2 are jointly and severally liable to pay a sum of Rs.1,00,00,000/-(One Crore only) to the complainant within 45 days from the date of the order, failing which OP 1 & 2 are directed to pay interest @ 6.5% P.a from the date of repudiation of the claim till realization of the amount.
3. OP No.1 & 2 are directed to pay cost of Rs.5,000/- to the complainant.
4. Further OPs are directed to file compliance report to this Commission within 45 days.
5. Send a copy of this order to all the parties to the proceedings at free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 27^th DAY OF JUNE 2023)

 

 

 

 

        LADY MEMBER                         PRESIDENT