Sumita Bhalla wd/o S. Brij Bhushan Bhalla resident o C-209, Urban Estate, Phase-I, Jamalpur, Ludhiana.

….Complainant.
Versus

1- HDFC Standard Life Insurance Co. Ltd. SCO, 126-127-128, Ist Floor, Kalinga Tower, Feroze Gandhi Market, adjoining Hotel Grewals’, Ludhiana through its branch Manager.
2- HDFC Standard Life Insurance Co. Ltd., having its registered office at Raman House, H.T. Parkash Marg, 169, Backbay Reclamation Church Gate, Mumbai, 400020 through its Managing Director.

….Opposite parties.

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present: Sh. Rajesh Mehra Adv. for the complainant.
Sh. P.S. Gumber Adv. for opposite parties.

O R D E R

T.N. VAIDYA, PRESIDENT:

1- Sh. Brij Bhushan Bhalla was husband of the complainant. He had taken life insurance policy no.000000222285 of Rs.20 lacs, commencing w.e.f. 7.8.2003 from the opposite party. Under the policy, Rs.6750/- was payable half yearly and due date of the last premium was 7.2.2027. Complainant was nominee of the policy holder. Husband of the complainant died on 16.12.2005. She after his death, lodged claim with the opposite party alongwith requisite certificates, forms and documents. But opposite party vide letter dated 27.7.2007 repudiated claim on ground that he deceased had concealed his illness o brain tumor at the time of revival of the policy, which allegedly had lapsed on account of non payment of the premium. This repudiation is assailed by the complainant by filing this complaint u/s 12 of the Consumer Protection Act, 1986, to be null, void and illegal. It is averred that assured husband of the complainant had never concealed serious ailment at the time of filing application for revival of the policy. Hence, ground taken by them, is unjustified. Therefore, complainant entitled for policy amount of Rs.20 lacs.


2- Opposite party in their reply, pleaded that complaint is not maintainable. Because the assured had intentionally and willfully concealed the factum of his illness. As such, there was a clear cut violation of the terms and conditions of the policy. Complainant has no locus standi to file complaint, due to fault committed by her husband. It is averred that policy was issued on 29th August, 2003, on the basis of application dated 7th August, 2003. The policy lapsed due to non payment o premium, was reinstated on 23.11.2004 on the basis of revival request dated 17.11.2004 of Sh. Brij Bhushan Bhalla. At the time of revival of the policy, the assured had declared that there was no change in his health between the date of application for insurance and the date of revival request. Said policy again lapsed and was reistated on 31.10.2005, on the basis of revival request dated August, 2005 of Sh. Brij Bhushan Bhalla. In that request, again assured had declared that there was no change in his health between date of application for insurance and the date of revival request form. He further declared that information given in the application is true and not withheld any material fact within his knowledge. But subsequently on investigation, it was established that life assured had been diagnosed of brain tumor long before first revival on 17.11.2004. Hence, declaration given by the assured, was false. Had he disclosed the ailment, the company would not have revived the policy. He willfully and knowingly gave wrong declaration in both revival request forms. Hence, he breached terms and condition of the policy. Therefore, claim was rightly and legally repudiated.


3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.


4- Sole question on which hinges decision of the complaint is whether at the time of revival of the policy, assured did not disclose ailment of brain tumor and consequently, breached terms and conditions of the policy. Because rest of the claim that assured had taken original policy from the opposite party, effective from 29.8.2003, is not in dispute. Repudiation letter Ex.C3 dated 27th July, 2007 goes to show that the policy was issued to the assured on 29.8.2003 on the basis of his application dated 7.8.2003. This policy lapsed due to non payment of premium and was reinstated on November 23, 2004, vide revival letter Ex.R2. Revival request from Ex.R2 clearly spells that assured Brij Bhushan Bhalla on 17.11.2004, declared that between the date of proposal and this declaration, there has been no change in the health of the life assured.


5- Policy again lapsed and was got revived by revival request form x.R3 dated 21.10.2005 of the assured. At that time also, assured gave another declaration that between date of proposal and his present declaration, there has been no change in the health of the life assured.


6- In order to show that when on both occasions, policy was got revived by the assured on 27.11.2004 and 21.10.2005, he was suffering from brain tumor, relied on medical certificate Ex.R21 dated 9.9.2004. This medical certificate was issued in favour of Sh. Brij Bhushan Bhalla by Mohan Dai Oswal Cancer treatment & Research Foundation, Ludhiana, where he took treatement. It is mentioned in the certificate that since 6.9.204, Sh. Brij Bhushan Bhalla assured is being treated for brain tumor as OPD patient.


7- Ex.R19 is discharge summary of Sh. Bhalla, reflecting that he remained in the hospital from 2.8.2004 to 4.8.2004. He was diagnosed of suffering from Decompression of tumor.


8- As such, it is apparent that when on his application, the assured on 27.11.2004 and 21.10.2005, got his insurance policy revived vide applications Ex.R2 and Ex.R3 respectively, he was already suffering from brain tumor. For such ailment, had taken treatment in Mohan Dai Cancer Hospital, Ludhiana. But in his both declarations Ex.R2 and Ex.R3, had wrongly and falsely stated that between the date of proposal and the declaration, there was no change in the health of the life assured. So, it means he had given wrong information qua his health, when got the policy revived.


9- It is in this backdrop to be seen whether due to suppression of ailment at the time of revival of the policy, opposite party was justified in repudiating the same.
10- Such like questions came for consideration before the Hon’ble National Commission in Asha Devi Vs Life Insurance Corp. of India 208(3) CLT-665(NC). In that case, the assured had suppressed pre-existing disease of renal failure and had given declaration of good health at the time of renewal of the policy. That declaration was false. So, order of Hon’ble State Commission, allowing appeal of insurance company, was upheld.


11- Hon’ble UT State Commission, Chandigarh in Shakuntala Kumari Sahni Vs LIC III(2004)CPJ-55, has held that contract of insurance is of good faith, it gets vitiated if concealment of facts about true state of health, is involved. For withholding heart ailment, was equated to suppressing facts, empowering insurance company, to repudiate the claim.

12- For suppressing ailment in another case reported in Senior Divisional Manager Vs Smt. Raksha Goyal II(2002)CPJ-92(NC), Hon’ble National Commission has also held that giving false declaration qua health, would vitiate the contract of insurance.


13- Contrary, on behalf of complainant, it as agued on the basis of case reported in Sunita Aggarwal Vs Life Insurance Corp. & Ors. 205(2) CLT-449(MP State Commission) that revival of lapsed policy would not constitute a new contract. With due respect, venture to state that facts of that case were quit distinct and different. Hence, ratio of that case would not be attracted to the case in hand.


14- In the present case, it is apparent that qua his health, assured had given false declaration at the time of revival of the policy and then false declaration was given, not once, but twice. He had suffered brain tumor prior to revival of the policy. But did not disclose such fact. Hence, he appears to have intentionally and deliberately given false information qua hi health to the opposite party. Therefore, on this ground of committing fraud with them, opposite party in our view, was justified in repudiating the claim. Hence, finding no merit in the complaint, the same is dismissed.

1. 1. 1. 1. 1. 1. 1. 1. 1. 1. CC. No. 137 of 08-05-2008
                              Decided on : 23-04-2009

Lekh Raj Kataria aged about 49 years S/o Sh. Gobind Singh, R/o H. No. 4144, Qila Road, Opp. Arora Vansh Dharamshala, Bathinda. ... Complainant
Versus

1. Branch Manager, HDFC Standard Life Insurance Company Limited, Ground Floor, 3038-A, Dalip Singh Walia Complex, Guru Kanshi Marg, National Highway No. 15, Bathinda.
2. Manager Claims, IInd Floor, 'A' Wing 'Trade Star' Junction of Kondivita & M.V. Road, Andheri- Kurla Road, Andheri (East) Mumbai.
3. Managing Director, IInd Floor, 'A' Wing 'Trade Star' Junction of Kondivita & M.V. Road, Andheri- Kurla Road, Andheri (East) Mumbai.
   

... Opposite parties


Complaint under Section 12 of the Consumer Protection

1. Act, 1986.
   

QUORUM


Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member

Present : Sh. Mithu Ram Gupta, Advocate, counsel for the complainant
Sh. Vinod Garg, Advocate, counsel for opposite parties.

O R D E R


SH. PRITAM SINGH DHANOA, PRESIDENT

1. This complaint has been filed by Sh. Lekh Raj Kataria, son of Sh. Gobind Singh, a resident of Bathinda, under Section 12 of the Consumer Protection Act, 1986 ( in short called the 'Act'), against HDFC Standard Life Insurance Company through its Branch Manager, Bathinda and Manager (Claims) and Managing Director, Mumbai, for giving them direction to make him payment of “Extra Health Benefit Scheme” under the Insurance policy alongwith a sum of Rs. 20,000/- on account of damages in addition to costs of filing of instant complaint. Briefly stated the case of the complainant is as under :
   That he has secured Insurance policy namely “Young-star unit” linked No. 10292024 in the sum of Rs. 2,00,000/- containing “Extra Health Benefit” clause, from the opposite parties. As per terms and conditions of the policy, the Insurer is liable to pay compensation if Insured becomes critically ill under clause of “Extra Health Benefit”. The complainant had been paying the premium regularly in time which he was liable to pay per annum as per schedule of payment. In the year, 2006, he fell sick and as per diagnosis by the doctor concerned, posted in Garg Nursing Home, Bathinda, he suffered chest pain leading to heart attack. The complainant remained admitted in the said hospital and after discharge, he submitted the claim to the opposite parties under the policy alongwith requisite documents including prescription slips, opinion of the doctors and medical reports, but his claim was repudiated by them illegally and in arbitrary manner on 21-09-2006 on the ground that it does not satisfy the condition of policy which had already lapsed due to non-payment of amount of premium. However, the policy was revived by the opposite parties after the requisite amount was deposited by the complainant.
2. On 27-01-2008, the complainant again fell sick and doctor diagnosed his disease as chest pain leading to heart attack. Thereafter, he remained admitted in Garg Nursing Home, Bathinda, from 27-01-2008 to 01-02-2008. On his discharge, he again lodged the claim under the policy with the opposite parties, but they demanded documents from him. Ultimately, they repudiated his claim vide their letter dated 19-03-2008 on the ground that there are no changes in the state of his health than those reported in the month of August, 2006 or further deterioration of his health whereas in the letter dated 21-09-2006, opposite parties have accepted that medical record supplied by the complainant on 31-05-2006 satisfies the terms and conditions of the policy. However as the policy remained lapsed between 7th July, 2006 to 25th August, 2006, but had been revived by the opposite parties, as such, the same continues under “Extra Health Benefit Scheme” and complainant is entitled to payment of amount of claim for his sickness with effect from 27-01-2008. He has also been subjected to mental and physical harassment due to negligence and carelessness on the part of the opposite parties and repudiation of his just claim. Hence, this complaint.
3. On being put to notice, opposite parties filed written version resisting the complaint by taking preliminary objections; that complaint is not maintainable; that complainant is not consumer within the ambit of its definition given in the Act; that complaint is false and vexatious and has been filed to damage the reputation of the opposite parties; that he has no cause of action and locus standi to file the complaint; that intricate question of law and fact are involved for adjudication of which parties need to lead elaborate evidence, as such, matter can be properly decided by civil court and not by this Forum in summary manner; that complainant has concealed material facts from this Forum; that claim lodged by the complainant cannot be allowed beyond the scope of agreement, as such, his complaint is liable to be dismissed with special costs. On merits, it is admitted that complainant secured “Unit Linked Young Star Plan Policy: from the opposite parties w.e.f. 21-06-2005 with “Extra Health Benefit Scheme” as defined in clause 17 thereof. The claim lodged by the complainant has been repudiated because the same does not meet the requirements of the said provisions. It is denied that complainant is entitled to payment of Rs. 2,00,000/- on account of claim. It is admitted that policy secured by the complainant had lapsed on 21-06-2006 because he did not pay the premium in the sum of Rs. 2500/- even within the grace period but on being informed about the said fact vide letter dated 10-07-2006, policy was revived vide letter dated 25-08-2006. It is admitted that complainant lodged a complaint on 11-09-2006 on similar ground but as per documents submitted by the complainant his ECG taken on 03-08-2006 did not show sufficient changes leading to heart attack. It is denied that complainant suffered any heart attack in the years 2006 and 2008 or that he remained admitted in the hospital from 27-01-2008 to 01-02-2008 and he lodged claims on 23-02-2008 alongwith relevant papers. It is contended that as there was no further deterioration of his health or new changes in the ECG, as such, his claim was repudiated vide letter dated 19-03-2008. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.
4. On being called by this Forum, to do so, counsel for the complainant furnished his affidavit Ex. C-1 and copies of documents Ex. C-2 to Ex. C-14 before he closed his evidence. On the other hand, counsel for the opposite parties furnished affidavit of Sh. Raj Kumar, (Operations Manager), Ex. R-1, and copies of documents Ex. R-2 to Ex. R-4, before he closed their evidence.
5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully, with their kind assistance.
6. At the outset, learned counsel for the complainant Sh. Mithu Ram Gupta, Advocate, has submitted that factum of issuance of policy, its lapse, revival and repudiation of claims preferred by the complainant are admitted by the opposite parties. Learned counsel has argued that complainant is entitled to the payment of claim lodged for the ailments suffered by him in the year, 2008, as per Clause 3(iii) of the policy, wherein it has been provided that “Extra Health Benefit” is payable if life insured becomes critically ill and suffers from one of the diseases defined under provision 17 and the policy shall continue to be in force until the date of its expiry. Learned counsel has argued that as per clause 17 (c) of the policy, chest pain suffered by the insured established by new electrocardiagraphic changes and by elevation of cardiac enzymes is sufficient for making payment of amount spent by him on his treatment but the opposite parties have repudiated claim lodged by the complainant in arbitrary and illegal manner and the reasons given by them are not inconsonance with the policy, as such there is deficiency in service due to whch complainant has been subjected to mental and physical agony, as such, he is entitled to payment of claim, waiver of his premium from the date of diagnosis and payment of compensation and costs incurred by him for filing of the instant complaint. Learned counsel has also drawn our attention to the document Ex. C-14, whereby payment of Rs. 15,261.80 has been paid in the name of Mrs. Renu Kataria against policy No. 10292024 and has argued that this fact substantiate the plea of the complainant that opposite parties were not justified in repudiating the claim of the complainant, otherwise there was no logic in payment of said amount, during pendency of complaint.
7. On the other hand, learned counsel for the opposite parties Sh. Vinod Garg, Advocate, has submitted that once the terms of the policy are reduced into writing, the parties are bound by the same. Learned counsel has argued that claim is payable under “Extra Health Benefit Scheme” in terms of clause 3 read with clause 17 of the policy if a portion a muscle of heart is proved to have become dead, but as per the documents furnished by the complainant, he just suffered from heart pain and has shown sufficient improvement at the time of his discharge from the hospital. Learned counsel has argued that initial onus was upon the complainant to establish that his case falls under the above said provisions, but he has failed to discharge the same, as such, onus never shifted on the opposite parties to prove to the contrary. Learned counsel has further argued that complainant has not examined the doctor who examined and treated him, as such, he has withheld the best evidence because of which reliance cannot be placed on the documents tendered in evidence by him. Learned counsel argued that amount paid vide Ex. C-14 does not pertain to any of the claim preferred by the complainant under “Extra Health Benefit Scheme”, as such, inference cannot be drawn that opposite parties accept the deficiency in service. Learned counsel has argued that there is no deficiency in service on the part of the opposite parties on account of which any amount may be paid to the complainant alongwith compensation and costs against claim preferred by him or further premium may be waived off. Learned counsel has urged that complaint, being false and vexatious, is liable to be dismissed with special costs.
8. The adjudication of the controversy involved in this complaint depends upon the interpretation of different clauses of Insurance policy and documents tendered in evidence by the complainant and furnished by him with his claim lodged with the opposite parties. As observed above, in earlier part of the order, as per Clause 3 (iii), of the Insurance policy the sum assured is payable to the claimant against “Extra Health Benefit Scheme” under the policy to the insured if he establishes that he remained critically sick and suffered from one of the diseases defined in Clause 17 thereof. In such a situation, the claimant is also absolved of his liability to pay future premium from the date of diagnosis of his disease till the date of expiry of policy. The Clause 17(c), policy provides that in case of heart attack , there shall be death of a portion of heart muscle as a result of an inadequate supply of blood as evidenced by an episode of typical chest pain, new electrocardiographic changes and by elevation of the cardiac enzymes.
9. The conjoint reading of the above said Clauses reveals that above said benefits are payable in the even of a death of part of heart muscle as a result of inadequate supply of blood has taken place after chest pain and established by electrocardiographic changes and by elevation of the cardiac enzymes but the perusal of the documents produced on record by the complainant including “Summary and Progress Report” Ex. C-12, goes to show that he was admitted in the hospital with chest pain which subsided after treatment in the Hospital. The ECG of the complainant demonstrate changes and initially it was detected that a part of muscle of inferior wall of heart had become dead due to non-supply of blood but it was revived after treatment after administration of injections of Molecule Weight Heparin. The ECG also became normal, as mentioned in the Discharge Summary Ex. C-12, and at the time of his discharge, complainant had no chest pain and was feeling comfortable. In view of these remarks given in the documents tendered in evidence by the complainant himself, we express our inability to accept his plea that he is entitled to payment of claim under “Extra Benefit Health Scheme” and waiver of amount of future premium in terms of Clause 17 of Insurance Policy.
10. The opposite parties while repudiating the claim lodged by the complainant in the year, 2008, have stated that there is no change in the condition of his health as mentioned in the documents over his condition in the year, 2006. The complainant has not claimed any relief in the instant claim for payment of his claim rejected in the year, 2006. These reasons given by the opposite parties in the letter of repudiation for his claim, lodged in the year 2008, in our opinion does not amount to admission on their part that any part of his muscle has become permanently dead. Since the ailment suffered by the complainant in the portion of his heart muscle, stands cured with treatment at the time of discharge from the hospital, therefore, repudiation of his claim can neither be termed as arbitrary nor illegal, on the part of the opposite parties. The payment in the sum of Rs. 1526.80 has been made vide Ex. C-14 in the name of Mrs. Renu Kataria and not in the name of the complainant himself although against the same policy. Had the said payment has any concern with the claim lodged by the complainant, then the cheque may have been issued in his name as he is still alive. Therefore, on the basis of this document, liability cannot be fastened upon the opposite parties.
11. In the light of our above discussion, we have come to the conclusion that there is no deficiency in service on the part of the opposite parties on account of which complainant might have been subjected to mental and physical agony and may be held entitled to seek any amount on that score or as compensation and expenses incurred by him for filing of instant complaint.
12. For the aforesaid reasons, we dismiss the complaint and leave the parties to bear their own costs. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject.

1. File be indexed and consigned.

N.Ravichandran

S/o. R. Narayanasamy

Site No.16, Hindustan Avenue,

Near Kamadenu Nagar,

Avarampalayam, Coimbatore – 6. --- Complainant

Vs.

M/s. HDFC Standard Life Insurance

Co. Ltd., Rep.by its Branch Manager,

108-109, TV Swamy Road, (West)

R.S.Puram, Coimbatore – 641002. --- Opposite Party.


This case coming on for final hearing before us on 11.05.09 and 24.06.09 in the presence of M/s.N.Ravichandran and N. Sridhar Advocates for complainant and Mr.S.Balasubramanian Advocate for the opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to return the surrender value of Rs.48,365/- together with interest @ 12% p.a.from the date of policy and to pay Rs.2,00,000/- towards compensation for mental agony for unfair trade practice and for the deficiency in service and pay Rs.1,500/- towards cost of the proceedings.


The averments in the complaint are as follows:

1. The Complainant is a practicing Advocate at Coimbatore joined in the Oppoiste party’s Life Insurance Policy (Premium Pension Plan) during March 2004 and his policy number is 00357538. The premium amount payable is Rs.10,000/- per year for a period of 10 years.

The Complainant had been paying the premiums regularly for the past 4 years and the premiums paid by the Complainant had generated a total bonus additions of Rs.7,855/- on the aforesaid Insurance Policy as per the bonus declaration statement issued by the Opposite Party. Due to financial constraints he intended to surrender his Policy and therefore he had submitted an application for the same at the opposite party’s branch office at R.S.Puram during May 2008 and a letter was sent to him along with a discharge surrender voucher stating inter alia that if the surrender value as mentioned in the discharge surrender voucher viz Rs.48,365/-.

2. The discharge surrender voucher (viz Rs.48,365/-) was acceptable to him, he accepted the offer made by the opposite party and had submitted his policy documents in original along with the discharge surrender Voucher duly stamped and signed on 29.05.08 at the opposite party’s branch office at R.S.Puram, Coimbatore.

Even after the receipt of the original policy documents and the discharge surrender voucher duly signed by him, the opposite party has not sent the cheque representing surrender value of Rs.48,365/- to him till date and this clearly amounts to deficiency on the party of the opposite party. But to the utter shock and surprise of the Complainant, the opposite party has sent another discharge surrender voucher for a far lesser amount of Rs.38,112/-, without assigning any reason whatsoever. The Complainant sent a notice by Speed Post dated 17.07.08 calling upon the opposite party to pay the surrender value of his Insurance Policy, viz Rs.48,365/- within a weeks time along with interest @ 12% p.a.,.

3. The Opposite party has sent a reply dated 23.07.08 expressing sincere apologies for the inconvenience caused to the Complainant. As per the telephonic conversation the opposite party has sent another discharge surrender voucher for Rs.48,020/- The Complainant accepted the surrender value of Rs.48,020/- without prejudice to the contentions mentioned in his notice dated 17.07.08 and the complainant had signed the said discharge surrender voucher and dispatched the same to the opposite party on 22.08.08 by RPAD. But the opposite party has again sent another discharge surrender voucher for Rs.38,467/- together with a letter dated 26.08.08 and policy document by courier. Hence this Complaint.

The averments in the counter are as follows:

4. The complainant had availed a Personal Pension Plan Policy from the Opposite party under Policy No. 00000357538 with date of commencement of Policy on 28.03.04 for a term of 10 years. As per the Contract embodied in the Policy premium of Rs.10,000/- is payable annually from the date of commencement and the final premium due will be on 28.03.2013. The Personal Pension Plan Policy is a personal contract between the Complainant viz., the Policy holder and the Opposite party company and is therefore bound by the terms and conditions explicitly incorporated in the policy as standard policy provisions. The Policy commenced on 28.03.04. and the first annual premium of Rs.10,000/- was paid on 28.03.04. Thereafter, on due dates vizx., 28.03.05, 28.03.06 and 28.03.07, premium of Rs.10,000/- each was paid by the Complainant.

5. Thus, total premium of Rs.40,000/- has been paid. No premium was paid on the next due date viz., 28.03.08 or within the stipulated 15 days time up to 12.04.08. Therefore, as per provision 3(ii) the Policy had lapsed with effect from the due date viz., 28.03.08. Therefore, the Complainant had become eligible for minimum surrender value of Rs.15,000/- only as per the Provision 4 i.e., Rs.0/- +50% of Rs.30,000/-.

A discharge voucher for Rs.48.365/- had been sent by the opposite party and the discharged voucher was also received back by the opposite party. The surrender value of Rs.48.365/- had been worked out on the basis of the details contained in the computer system by the Coimbatore Office of the opposite party Company and voucher had been released simultaneously seeking confirmation from their Mumbai Office under the genuine impression that nothing would have gone wrong since it was in the system.

6. It was at the time of preparation of the cheque for a like amount that it was found that a sum of Rs.10,000/- paid by another Policy holder on the same day on 28.03.08 under Policy No. 353648 had been erroneously credited by the date entry operator to the policy account of the complainant bearing No. 357538. Admittedly, the complainant had not paid the annual premium on the Due Date on 28.03.08.

Since this was a wrong credit, the surrender value was re-worked and a voucher for Rs.28.112/- had been sent to the complainant. Therefore, the correct offer of Rs.38,112/- as against the minimum guaranted amount of Rs.22,855/- should have been well reckoned by the Complainant. The first quote for Rs.48,365/- had been made due to a wrong credit to the complainant’s account and when he refused to receive the correct offer of Rs.38,112/- but had chosen to cause a Notice dated 17.07.08 it was referred to the Grievance cell in the Corporate Office who acknowledged the same vide their letter dated 23.07.08.

7. By this time the quote expiry dated of 18.07.08 having been over the actuarial to whom the grievance team had requested to look into the matter had referred the issue to their independent system viz., ‘Wonders’ in which the wrong credit reversion had not been done had generated a fresh quote for Rs.48,021/- and dispatched to the complainant in their eagerness to resolve the complaint at the earliest.

This non-updation mistake by the acuturial, who had no opportunity to know the previous wrong credit, was then noticed by the Coimbatore Office and a correct fresh quote was made for Rs.38,467/- and sent to the complainant. It is submitted that a detailed letter dated 26.08.08 was sent to the Complainant explaining the erroneous dispatch of surrender discharge voucher for Rs.48,365/- and regretting the laps in service which was certainly unintentional and sincerely apologizing for all the inconvenience caused.

8. The complainant and opposite party have filed Proof Affidavits along with documents Ex.A1 to A13 was marked and Ex.B1 and B2 was marked on the side of the opposite party.

The authorities filed on the side of the complainant

1. AIR 1980 Karnataka 168

2. AIR 1968 Supreme Court 1413 V.55 C 27(6)

The authorities filed on the side of the opposite parties

1. IV (2008) CPJ 141 (NC)

The point for consideration is

Whether the opposite party has committed deficiency in service?

If so to what relief the complainant is entitled to?

ISSUE 1

The case of the complaint :

9. The Complainant is a policy holder. The complainant intended to surrender his policy before the maturity date due to financial constraints. Therefore the Opposite Party had sent a discharge surrender voucher for Rs.48,365/- The complainant accepted the surrender value and returned the voucher duly signed along with the policy documents in original. Thereafter the opposite party had sent four discharge surrender voucher to the complainant for different value. The opposite party had given an assurance that they would arrange to send the cheque for the surrender value on receipt of the discharge form and policy documents. But the opposite party did not honour their assurance and this has caused a lot of mental agony to the complainant. Aggrieved by this, the complainant has filed this case.

The case of the Opposite party:

10. The case of the opposite party is that the surrender value of Rs.48,365/- was erroneously dispatched. The data entry operator had erroneously credited the premium amount paid by another policy holder in the account of the complainant and therefore surrender value of Rs.48,365/- had been reworked and a voucher for Rs.38,112/- had been sent and the 3rd discharge voucher for Rs.48,021/- had been sent erroneously by their independent system 'Wonders' in their eagerness to resolve the dispute at the earliest and therefore a correct fresh quota was made for Rs.38,467/-. The main contention of the opposite party is that admitting a mistake and apologizing for the same would not constitute any 'deficiency in service'.

ADMITTED FACTS:

11. It is an admitted fact that the complainant had availed a personal pension plan policy from the opposite party under policy No. 357538 with date of commencement of policy on 28.3.04. The premium payable is Rs.10,000/- for a term of ten years is also admitted. The complainant had submitted an application expressing his intention to surrender his policy before the maturity date is also admitted.

The opposite party has also admitted that it had sent four discharge surrender vouchers to the complainant for different values viz., Rs.48,365/- , Rs.38,112/-, Rs.48,021/- and Rs.38,467/-. The lapse in service has also been admitted by the opposite party. The opposite party has also admitted that they had committed an erroneous mistake. The fact that premiums had been paid for 4 years and that the premiums paid had generated a bonus addition of Rs.7,855/- is also admitted. The 1st and 3rd surrender vouchers duly signed has been submitted before the expiry date is also admit.

CONCLUSION:

12. The complainant had surrendered his insurance policy due to financial constraints. Thereafter the opposite party had sent a discharge surrender voucher for Rs.48,365/- along with a letter stating that if the said surrender value was acceptable to him and if he wish to surrender the policy he should return the voucher duly signed along with the policy documents in original. As the surrender value offer of Rs.48,365/- made by the opposite party was acceptable to him, he had accepted the surrender value in full and final satisfaction of all his claims and demands under the said policy and returned the same duly signed along with the policy documents in original and the policy contract was treated as “Cancelled” with immediate effect. But as assured the opposite party did not send the cheque for the said surrender value.

13. The complainant had accepted the 1st offer of Rs.48,365/- unconditionally and absolutely within the time stipulated for acceptance in the proposal. The offer made is accepted, a contract is concluded as per the Indian Contract Act. (AR 1980 Karnataka 168). The opposite party has not revoked its offer /proposal to pay Rs.48,365/- before the communication of its acceptance was completed. Therefore the opposite party is under a contractual obligation to pay the said offer of Rs.48,365/- to the complainant.

The main contention of the opposite party as per the written version, is that the premium paid by some other person had been wrongly credited in the account of the complainant by the data entry operator. In order to substantiate their contention, the opposite party has not filed any documentary evidence. Except Ex-B2 no other documents has been produced by the opposite party as regards the alleged erroneous credit entry in the complainant's account. Ex-B2 only shows that the opposite party has a policy holder by name Ajit Dubhashi and nothing more. Therefore the opposite party has failed to prove their contention by producing evidence from their custody. As the opposite has failed to prove that a mistake had crept in their accounts, all other explanations made by the opposite party falls to the ground.

REGARDING CLAUSE 4 OF THE POLICY:

14. Clause 4 of the policy contract stipulates the method to calculate the guaranteed minimum surrender value if premiums had been paid continuously for a period of 3 years. It has not been clearly spelt out in the said clause 4 as to how the guaranteed minimum surrender value has to calculate in case the premiums are paid continuously for more than 3 years. The opposite party cannot take shelter under clause 4 of the policy contract. The calculation of surrender value as per clause 4 of the policy is not correct.

REGARDING CALCULATION:

15. The opposite has produced the calculation details as per the directions of this Forum. Product Manager-Eshwari Murugan's name is found in that document, but it has not been signed by that person. No staff of the opposite party has taken the responsibility atleast to sign in that document Moreover proof affidavit and written version has been filed by one Sunil B. Shankar, the Zonal Legal Manager and therefore it cannot be relied upon. Moreover it is not transparent and it lacks details.

16. The opposite party has worked out certain modality in order to amicably settled the aforesaid issue and thereafter has sent a fresh offer of Rs.48,021and since the complainant has accepted the said offer a fresh contract has come into existence. It is also relevant to mention that the opposite party has not reworked their offer to pay Rs.48,021 to the complainant before the communication of its acceptance was completed and therefore the opposite party is under contractual obligation and to pay the said amount to the complainant as per Section 5 of Indian Contract Act. The opposite party has sent 4 discharge surrender vouchers for 4 different values and this clearly shows that there is deficiency in service on the part of the opposite party. As the opposite parties have failed to prove that a mistake had erupted in their mistake all other explanations made by the opposite parties is not acceptable one.

17. The opposite party has cited a ruling reported in 2008(4) CPJ Page 141 (NC). This ruling is not applicable to the present case.

18. For the above said reason, we are of the view that the complainant is entitled to get Rs.48,365 as a surrender value together with interest at the rate of 12% p.a. .with due compensation.

19. In the result, we direct the opposite party to return the surrender value of Rs.48,365 together with interest at the rate of 12% p.a. from 29.5.08 to the date of payment and to pay compensation of Rs.20,000 for mental agony and to pay cost of Rs.1000/- within two months from the date of this order

1.

Poonam Sethi, age 46 years, widow of Vijay Kumar Arora,
2.

Love Sethi, age 24 years (son )
3.

Kush Sethi, age 23 years (son)
4.

Ritika Sethi, age 19 years (daughter)
5.

Megha Sethi, age 16 years (minor daughter ) of Sh. Vijay Kumar Arora, all residents of H.No. 194, Ward No. 4, Moonak Gali, Urmur, Distt. Hoshiarpur (Complainant No. 5 through her mother complainant No. 1 as her natural guardian and next friend).


........ Complainants

versus


1. H.D.F.C. Standard Life Insurance Amminet Mall, Above Axis Bank, Court Road, Hoshiarpur, through its Branch Manager.

2. Housing Development Finance Corporation Ltd., (HDFC Ltd.), 136, Near Jawahar Nagar, Cool Road, Jalandhar, through its Branch Manager.

3. D.J.M., HDFC Ltd., SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.


............ Opposite Parties


1.

The complainants have filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that deceased Vijay Kumar Arora, the husband of complainant No. 1 and father of complainants No. 2 to 5, applied for Housing Loan from HDFC Ltd., and a loan of Rs. 20 lacs was sanctioned vide approval letter dated 26.2.2007.
2.

It is further the case of the complainants that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant No. 1 for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) on account of insurance premium was to be paid by opposite parties No. 2 and 3 to opposite party No. 1. That the total loan amount was Rs. 20,81,631/-. That the amount of Rs. 81,631/-, one time instalment was also debited in the account of deceased Vijay Kumar Arora and complainant No. 1.
3.

It is further the case of the complainants that Sh. Vijay Kumar Arora expired on 2.6.2008. The complainants are the Legal Heirs of deceased Vijay Kumar Arora. It is further the case of the complainants that they informed OP No. 2 about the death of Vijay Kumar Arora with the request to adjust the insurance money in the loan account after claiming it from OP No. 1, but of no consequences.
4.

It is the allegation of the complainants that a false story of collection of cheque by Vijay Kumar Arora has been cooked up vide letter dated 20.9.2008. The OP No. 1 is a sister concern of OP No. 2.
5.

It is further the allegation of the complainants that they have come to know from reliable sources that deceased Vijay Kumar Arora and Poonam Sethi, complainant No. 1 were not got insured by OP No. 1. The OP No. 1 deposited the amount of Rs. 81,631/- in the loan account, therefore, due to the negligence of opposite parties, the insurance policy in favour of Vijay Kumar Arora and complainant No. 1 was not issued. The complainant No. 1 and deceased Vijay Kumar Arora were not informed with regard to the non-issuance of insurance policy during the lift time of said Vijay Kumar Arora. That legal notice dated 18.3.2009 was sent to the opposite parties, but the claim of the complainants has not been settled, hence this complaint.
6.

The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, mis-joinder of parties, cause of action and jurisdiction were raised. On merits, the claim put forth by the complainants has been denied. It is replied that there is no deficiency on the part of the replying opposite party.
7.

The opposite parties No. 2 and 3 filed the joint reply. The preliminary objections vis-a-vis maintainability and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Sh. Vijay Kumar Arora and Complainant No. 1 applied for housing loan from HDFC (O.Ps No. 2 and 3 ) and a loan of Rs. 20 lac was sanctioned vide approval letter dated 26.2.2007 (Loan Account No. 563127376). It is further replied that Vijay Kumar Arora and Complainant No. 1 moved an application dated 16.3.2007 to HDFC with the request that they will get Term Assurance Insurance Policies from HDFC Standard Life Insurance – OP No. 1 and the loan amount be increased accordingly. The premium amount of Rs. 81,631/- was worked out as one time premium for the insurance policy, which was to be paid to HDFC Standard Life Insurance – OP No. 1 on the request of deceased Vijay Kumar Arora and complainant No. 1. It is further replied that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other bearing No. 801007 dated 18.4.2007 of Rs. 24,809/- in favour of HDFC Standard Life Insurance Co. Ltd.


That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with HDFC Standard Life Insurance Company Limited – OP No. 1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No. 1. The amount of Rs. 81,631/- was debited in the loan account of deceased Vijay Kumar Arora and complainant No. 1, to ensure that the funds are utilized for the purpose for which the loan had been approved. It is further replied that deceased Vijay Kumar Arora and complainant No. 1 were required to get themselves medically examined and complete other formalities.

8.

It is further replied that it seems that deceased Vijay Kumar could not complete the formalities, as such, the cheques referred to above, had also not been deposited by him with OP No. 1, as the cheques were never presented for payment to the bank, as such both the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant No. 1. That information to this effect was given to complainant No. 1. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and complainant No. 1 insured. Since no insurance policy had been issued by the insurance company, therefore, there is no question of any insurance claim. It was not the duty of replying opposite parties to complete the requirements of the insurance company, as such the replying opposite parties cannot be made liable. The complainant No. 1 and Sh. Vijay Kumar Arora had not completed the requirements of getting the insurance policy and also not deposited the cheque of the premium amount with OP No. 1.

9.

In order to prove the case, the complainants tendered in evidence affidavit of Kush Sethi – Ex. C-1, copy of letter dated 26.2.2007 – Mark C-2, loan agreement – Mark C-3, receipt – Mark C-4, letter dated 16.3.2007 – Mark C-5, forms dated 17.3.2007 – Mark C-6, Mark C-7, letter dated 13.10.2008 – Mark C-8, disbursement memo dated 3.3.2007 – Mark C-9, memo dated 18.4.2007 – Mark C-10, memo dated 16.5.2007 – Mark C-11, statement of account – Mark C-12, statement of account from 1.4.2007 to 31.12.2008 – Mark C-13, letter dated 2.2.2009 – Mark C-14, letter to Banking Ombudsman – Mark C-15, order dated 3.10.2008 – Mark C-16, complaint form dt. 13.10.2008 – Mark C-17, letter dated 23.10.2008 – Mark C-18, letter dated 17.10.2008 – Mark C-19, carbon copy of notice – Ex. C-20, postal receipts – Ex. C-21 to Ex. C-23, A.Ds – Ex. C-24 to Ex. C-26, copy of death certificate – Mark C-27, copy of power of attorney dated 13.3.2009 – Mark C-28, copy of power of attorney dated 1.3.2007 – Mark C-29 and closed the evidence.
10.

In rebuttal, the opposite party No. 1 tendered in evidence affidavit of Rahul Dhanotia – Ex. OP-1, whereas, affidavit of Nandan Singh Rawat – Ex. OP-2, disbursement memo – Mark OP-3 (pages 2), letter dated 2.9.2008 – Mark OP-4 and closed the evidence on behalf of opposite parties No. 1 to 3.
11.

The learned counsel for the parties filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The case of the complainants is that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant No. 1 for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) as premium was to be paid by OPs No. 2 and 3 to OP No. 1. It is the allegation of the complainants that they informed OP No. 2 with regard to the death of Vijay Kumar Arora and also made a request to adjust the insurance money in the loan account after claiming it from OP No.1, but of no consequences.
13.

It is further the allegation of the complainants that deceased Vijay Kumar Arora and complainant No. 1 were not got insured by OP No. 1 and the amount of Rs. 81,631/- was deposited/adjusted in the loan account. That the complainant No. 1 and Vijay Kumar Arora were not informed with regard to the non-issuance of the insurance policy during the life time of Vijay Kumar Arora.
14.

The opposite parties raised the preliminary objections with regard to maintainability and cause of action. The opposite parties No. 2 and 3 had raised the defence that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other cheque bearing No. 801007 dated 18.4.2007of Rs. 24,809/-in favour of HDFC Standard Life Insurance Co. Ltd. - OP No. 1. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with OP No.1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No.1.


The opposite parties No. 2 and 3 had further raised the defence that the amount of Rs.81,631/ was debited in the loan account of deceased Vijay Kumar Arora and complainant No. 1,as the said cheques were never presented for payment to the bank, as such the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and complainant No. 1. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and complainant No. 1 insured. Since no insurance policy had been issued by OP No. , therefore, there is question of any insurance claim.
15.

Now, the point which calls determination from this Court is whether the chques of Rs. 56,822/- and Rs. 24,809/-, referred to above, were deposited with OP No. 1. The answer to this is in the negative.
16.

The opposite parties No. 2 and 3 in their reply to Para No. 3 has stated that the cheques were cancelled and the amount was credited in the loan account of Sh. Vijay Kumar Arora and complainant No. 1 and information to this effect, was given to complainant No. 1.
17.

Mark OP-4 is a letter dated 20th September, 2008 written by OP No. 2 to complainant No. 1 and its relevant portion reads as under :

“The cheques had been collected from our Jalandhar office by your husband for depositing them with the insurance company. However, on receipt of your letter, we have checked from the insurance company and find that there is no policy that has been issued by them against the above-mentioned cheque/s, with the result the insurance company could not issue the policies. We have also checked our Bank Statements and find that the above-mentioned cheques were not paid/cleared by our bank and accordingly the amount of the cheques was credited in your loan account.”

18.

The defence raised by opposite parties No. 2 and 3 in para No. 3 of the reply is supported by the affidavit of Nandan Singh Rawat – Ex.OP-2. The complainant has failed to rebut the contents of the letter – Mark OP-4, referred to above. More-so, the amount of Rs. 81,631/- has been credited in the loan account of deceased Vijay Kumar Arora and complainant No. 1 qua document – Mark OP-4, therefore, it can legitimately be concluded that the amount of Rs. 81,631/- has not been deposited with OP No. 1. It is also clear from the statement of account – Mark OP-3 that the amount of Rs. 81,631/- has been credited in the account of deceased Vijay Kumar Arora and complainant No. 1, therefore, it can be concluded without any hesitation that deceased Vijay Kumar Arora, the husband of complainant No. 1 had failed to deposit the amount of Rs. 81,631/- with OP No. 1, as such, OP No. 1had not issued any insurance policy in favour of deceased Vijay Kumar Arora and complainant No. 1 and ultimately, the amount of Rs. 81,631/- was credited in the account of deceased Vijay Kumar Arora and complainant No.1.
19.

Since the amount of Rs. 81,631/- has not been deposited with OP No. 1, therefore, HDFC Standard Life Insurance Company Ltd. - OP No. 1 was not under legal obligation to issue the insurance policy in favour of complainant No. 1 and decesed Vijay Kumar Arora. More-so, the complainant has not produced any evidence on the record to prove that the opposite parties No. 2 and 3 were under legal obligation to deposit the amount of Rs. 81,631/- with the insurance company- OP No. 1.
20.

Now, it is clear that there is no insurance policy issued in favour of deceased Vijay Kumar Arora and complainant No. 1, therefore, it is concluded that the present complaint is not maintainable and the complainant has no cause of action to file the present complaint, consequently, the complaint is dismissed. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Poonam Sethi, age 46 years, widow of Vijay Kumar Arora, resident of H.No. 194, Ward No. 4, Moonak Gali, Urmur, Distt. Hoshiarpur.


........ Complainant

versus


1.

H.D.F.C. Standard Life Insurance Amminet Mall, Above Axis Bank, Court Road, Hoshiarpur, through its Branch Manager.
2.

Housing Development Finance Corporation Ltd., (HDFC Ltd.), 136, Near Jawahar Nagar, Cool Road, Jalandhar, through its Branch Manager.
3.

D.J.M., HDFC Ltd., SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.


............ Opposite Parties




1.

The complainant namely Poonam Sethi has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that deceased Vijay Kumar Arora, the husband of complainant and the complainant applied for Housing Loan from HDFC Ltd., and a loan of Rs. 20 lacs was sanctioned vide approval letter dated 26.2.2007.
2.

It is further the case of the complainant that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) on account of insurance premium was to be paid by opposite party No. 2 to opposite party No. 1. That the total loan amount was Rs. 20,81,631/-. That the amount of Rs. 81,631/-, one time instalment was also debited in the account of deceased Vijay Kumar Arora and complainant.
3.

It is further the case of the complainant that Sh. Vijay Kumar Arora expired on 2.6.2008. It is further the case of the complainant that she informed OP No. 2 about the death of Vijay Kumar Arora with the request to adjust the insurance money in the loan account after claiming it from OP No. 1, but of no consequences.
4.

It is the allegation of the complainant that a false story of collection of cheque by Vijay Kumar Arora has been cooked up. The OP No. 1 is a sister concern of OP No. 2.
5.

It is further the allegation of the complainant that she has come to know from reliable sources that deceased Vijay Kumar Arora and the complainant were not got insured by OP No. 1. The OP No. 1 deposited the amount of Rs. 81,631/- in the loan account, therefore, due to the negligence of opposite parties, the insurance policy in favour of Vijay Kumar Arora and the complainant was not issued. The complainant and deceased Vijay Kumar Arora were not informed with regard to the non-issuance of insurance policy during the life time of said Vijay Kumar Arora. That the claim of the complainant has not been settled, hence this complaint.
6.

The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, mis-joinder of parties, cause of action and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that there is no deficiency on the part of the replying opposite party.
7.

The opposite parties No. 2 and 3 filed the joint reply. The preliminary objections vis-a-vis maintainability and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Sh. Vijay Kumar Arora and Complainant applied for housing loan from HDFC (O.Ps No. 2 and 3 ) and a loan of Rs. 20 lac was sanctioned vide approval letter dated 26.2.2007 (Loan Account No. 563127376). It is further replied that Vijay Kumar Arora and the complainant moved an application dated 16.3.2007 to HDFC with the request that they will get Term Assurance Insurance Policies from HDFC Standard Life Insurance – OP No. 1 and the loan amount be increased accordingly.


The premium amount of Rs. 81,631/- was worked out as one time premium for the insurance policy, which was to be paid to HDFC Standard Life Insurance – OP No. 1 on the request of deceased Vijay Kumar Arora and the complainant. It is further replied that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other bearing No. 801007 dated 18.4.2007 of Rs. 24,809/- in favour of HDFC Standard Life Insurance Co. Ltd. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with HDFC Standard Life Insurance Company Limited – OP No. 1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No. 1. The amount of Rs. 81,631/- was debited in the loan account of deceased Vijay Kumar Arora and the complainant, to ensure that the funds are utilized for the purpose for which the loan had been approved. It is further replied that deceased Vijay Kumar Arora and the complainant were required to get themselves medically examined and complete other formalities.
8.

It is further replied that it seems that deceased Vijay Kumar could not complete the formalities, as such, the cheques referred to above, had also not been deposited by him with OP No. 1, as the cheques were never presented for payment to the bank, as such both the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant.


That information to this effect was given to complainant. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and the complainant insured. Since no insurance policy had been issued by the insurance company, therefore, there is no question of any insurance claim. It was not the duty of replying opposite parties to complete the requirements of the insurance company, as such the replying opposite parties cannot be made liable. The complainant and Sh. Vijay Kumar Arora had not completed the requirements of getting the insurance policy and also not deposited the cheque of the premium amount with OP No. 1.
9.

In order to prove the case, the complainant tendered in evidence affidavit of Kush Sethi – Ex. C-1, copy of letter dated 26.2.2007 – Mark C-2, loan agreement – Mark C-3, receipt – Mark C-4, letter dated 16.3.2007 – Mark C-5, forms dated 17.3.2007 – Mark C-6, Mark C-7, letter dated 3.10.2008 – Mark C-8, disbursement memo dated 3.3.2007 – Mark C-9, memo dated 18.4.2007 – Mark C-10, memo dated 16.5.2007 – Mark C-11, statement of account – Mark C-12, statement of account from 1.4.2007 to 31.12.2008 – Mark C-13, letter dated 2.2.2009 – Mark C-14, letter to Banking Ombudsman – Mark C-15, order dated 3.10.2008 – Mark C-16, complaint form dated 13.10.2008 – Mark C-17, letter dated 23.10.2008 – Mark C-18, letter dated 17.10.2008 – Mark C-19, death certificate – Mark C-20, copy of power of attorney dated 13.3.2009 – Mark C-21, copy of power of attorney dated 1.3.2007 – Mark C-22, affidavit of Poonam Sethi – Ex. CX and closed the evidence.
10.

In rebuttal, the opposite party No. 1 tendered in evidence affidavit of Rahul Dhanotia – Ex. OP-1, whereas, the opposite parties No. 2 and 3 tendered in evidence affidavit of Nandan Singh Rawat – Ex. OP-2, Disbursement Memo – Mark OP-3 (pages 2), letter dated 20.9.2008 – Mark OP-4 and closed the evidence on behalf of the opposite parties.
11.

The learned counsel for the parties filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The case of the complainant is that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and the complainant for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) as premium was to be paid by OP No. 2 to OP No. 1. It is the allegation of the complainant that she informed OP No. 2 with regard to the death of Vijay Kumar Arora and also made a request to adjust the insurance money in the loan account after claiming it from OP No.1, but of no consequences.
13.

It is further the allegation of the complainant that deceased Vijay Kumar Arora and the complainant were not got insured by OP No. 1 and the amount of Rs. 81,631/- was deposited/adjusted in the loan account. That the complainant and Vijay Kumar Arora were not informed with regard to the non-issuance of the insurance policy during the life time of Vijay Kumar Arora.
14.

The opposite parties raised the preliminary objections with regard to maintainability and cause of action. The opposite parties No. 2 and 3 had raised the defence that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other cheque bearing No. 801007 dated 18.4.2007of Rs. 24,809/-in favour of HDFC Standard Life Insurance Co. Ltd. - OP No. 1. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with OP No.1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No.1. The opposite parties No. 2 and 3 had further raised the defence that the amount of Rs.81,631/ was debited in the loan account of deceased Vijay Kumar Arora and the complainant,as the said cheques were never presented for payment to the bank, as such the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and the complainant insured. Since no insurance policy had been issued by OP No.1 , therefore, there is question of any insurance claim.
15.

Now, the point which calls determination from this Court is whether the chques of Rs. 56,822/- and Rs. 24,809/-, referred to above, were deposited with OP No. 1? The answer to this is in the negative.
16.

The opposite parties No. 2 and 3 in their reply to Para No. 3 has admitted that the cheques were cancelled and the amount was credited in the loan account of Sh. Vijay Kumar Arora and the complainant and information to this effect, was given to the complainant.
17.

Mark OP-4 is a letter dated 20th September, 2008 written by OP No. 2 to the complainant and its relevant portion reads as under :

“The cheques had been collected from our Jalandhar office by your husband for depositing them with the insurance company. However, on receipt of your letter, we have checked from the insurance company and find that there is no policy that has been issued by them against the above-mentioned cheque/s, with the result the insurance company could not issue the policies. We have also checked our Bank Statements and find that the above-mentioned cheques were not paid/cleared by our bank and accordingly the amount of the cheques was credited in your loan account.”

18.

The defence raised by opposite parties No. 2 and 3 in para No. 3 of the reply is supported by the affidavit of Nandan Singh Rawat – Ex.OP-2. The complainant has failed to rebut the contents of the letter – Mark OP-4, referred to above. More-so, the amount of Rs. 81,631/- has been credited in the loan account of deceased Vijay Kumar Arora and complainant qua document – Mark OP-4, therefore, it can legitimately be concluded that the amount of Rs. 81,631/- has not been deposited with OP No. 1. It is also clear from the statement of account – Mark OP-3 that the amount of Rs. 81,631/- has been credited in the account of deceased Vijay Kumar Arora and the complainant, therefore, it can be concluded without any hesitation that deceased Vijay Kumar Arora, the husband of the complainant had failed to deposit the amount of Rs. 81,631/- with OP No. 1, as such, OP No. 1had not issued any insurance policy in favour of deceased Vijay Kumar Arora and the complainant and ultimately, the amount of Rs. 81,631/- was credited in the account of deceased Vijay Kumar Arora and complainant No.1.
19.

Since the amount of Rs. 81,631/- has not been deposited with OP No. 1, therefore, HDFC Standard Life Insurance Company Ltd. - OP No. 1 was not under legal obligation to issue the insurance policy in favour of the complainant and deceased Vijay Kumar Arora.More-so, the complainant has not produced any evidence on the record to prove that the opposite parties No. 2 and 3 were under legal obligation to deposit the amount of Rs. 81,631/- with the insurance company- OP No. 1.
20.

Now, it is clear that there is no insurance policy issued in favour of deceased Vijay Kumar Arora and the complainant, therefore, it is concluded that the present complaint is not maintainable and the complainant has no cause of action to file the present complaint, consequently, the complaint is dismissed. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

From :

P.H.Divecha

A/206, Vineet Apartments,

Capt. Sameer Chandavarkar Road,

Dahanukarwadi,

Kandivali (west),

Mumbai- 400 067.

Mobile No. 9920189468

Dear Sir,

I narrate hereunder my experience with HDFC Standard Life Insurance Co Ltd.
Not being sure in what form the complaint should be made out, I have taken
this route of going through Admin. As such, I approach you for help and
guidance.



1. Having recently retired I was into substantial funds (PF & Gratuity
Disbursements from my employer). I was on the look out for parking these
funds profitably in Corporate FDs

2. Officials of HDFCSL approached me in the month of August 2009, and
requested for my patronage. When their products were discussed, I found
that they are in the nature of insurance and therefore I told them that I
need investments in such a manner that I would get regular monthly income to
sustain my family. I therefore declined any insurance policies.

3. They persisted and discussed UNITLINKED WEALTH MULTIPLIER PLAN and
informed me that said plan basically being investment plan (with added
insurance cover) also has the facility of withdrawals after five years. I
told them that I am still not inclined to accept their offer. They
persisted and told me that the plan gives a very high return of 18% and
pointed out that rate of return being so high compared to other investment I
should go for the plan. I am holding computerised illustration showing rate
of return at 18%.

*4. **I still told them that I have already finalized my investments. They
suggested re-allocation since presently only a part amount is required. I
was also advised that since I was overage the Application will be made out
in the name of my wife and she will have to undergo a Medical Test. I
informed that my wife has a borderline blood sugar reflection. I was
assured that such borderline cases do not matter and that the medical test
is a mere formality. *



5. Relying on the assurances and attracted by the promised high returns,
I agreed to invest Rs. 7.50 lacs in three trenches and gave them a cheque
from my account and duly singed by me towards initial contribution of Rs.
2.50 lacs along with an Application on 13.08.2009.

6. For accommodating the said investment I had to reallocate funds as
under. Rs. in lacs

Company

Original Inv.

Revised Inv.



1.A

2.C

3.T

4.I.H.

5.HDFC

Total

Amt.

Term

ROI

2.50

3

9.50

3.00

3

10.50

5.00

3

10.25

2.00

3

10.00

00.00

--

--

12.50





Amt.

Term

ROI

2.50

1

9.00

2.50

2

10.00

5.00

3

10.25

0.00

--

--

2.50



18.00

12.50


7. HDFSCL encashed the cheque on 17.08.2009, (Clinet ID No. 55689476 and
proposal no. 13085733). I am hodling receipt No. AQD11173 dated 13.08.2009.


8. Vide letter dated 19.09.2008 advised my wife to take Medical
Examination. The same was completed on 22.08.2009.

After the Examination, my wife reported that the doctor/technician who
attended on her was not upto the mark and had wrongly taken her BP and ECG
was also not taken properly.

9. On 25.08.2009, the officials orally informed that the proposal has
been declined due to 1. adverse Blood Sugar level 2. BP and 3. ECG. While
orally informing them about the inefficiency of the medical attendant on the
day of examination, I also demanded for exact reasons as the reasons given
by them were found to be vague.

10. I followed up with my letter dated 25.08.2009, wherein I put
on record the experience of my wife at the medical center and also
officially demanded copies of the report. I also objected to the summary
rejection of the proposal on the ground that no opportunity of being heard
is provided and company has already accepted part-consideration. When copies
of reports were received I noticed certain discrepancies in the Medical
report and pointed out to the company. *The company officials kept on
assuring me that their head office had taken a decision to restart the case.
But company sent a cheque for 2.50 lacs, without any interest or
explanation which I received on 02.09.2009.*

11. I wrote on 25.08.2009,01.09.2009, 02.09.2009,10.09.2009 and
11.09.2009. I also made my wife to take another blood test at my own cost
and it was revealed that Fasting blood Sugar level was 108 only as against
168 reported by the medical center. Undercover of my letters dated
10.09.2009 and 11.09.2009 I forwarded copies of the said report alongwith my
Doctor’s certificate clearly certifying that my wife never had problems
relating BP or heart.

12. The company refused to accept any clarifications from my side
and repeated the decline vide letters dated 05.09.2009,26.09.2009 and
26.10.2009. I also sent a Notice on 05.10.2009 which has remained
unanswered till date.

13. Since the correspondence is voluminous, I am not attaching
here.



*I wish to pursue the matter with consumer court, claiming actual and
irrecoverable loss Rs. 1,61,466.00 approx. that I have sustained due to
shift of my investments from other straight investments as depicted in para
No. 6 above. But the feedback I received tells me that I will not succeed
as I cannot force the company to enter into any contract. *

*While I do appreciate that as an argument I feel that I have been wronged
by the false medical report and undue and unreasonable stand of the company
in not taking further redeeming actions after I informed them about the
inefficiency of the attendant and the discrepancy in the reports as also the
results of fresh medical reports and my family Doctor’s certificate. Can
this be regarded as deficiency in service in terms of CPA Act, and can I
Proceed against the company? If so, What should be the “Nature of
complaint” in my case. *



I have also noticed Unfair Trade Practice in as much as I was promised

· High returns ( I have found on subsequent analysis that this is not
true- I have actually worked on this aspect while drafting my petition.)

· Medical test to be mere formality

· Borderline blood sugar cases have been accepted by the company etc.

Can I take unfair trade practice as a nature of complaint based on the
above.


The consumer complaint will be filed jointly with my wife.

I request you to kindly guide me. If need be, I can mail copies of my
correspondence with the company and Draft complaint, with a request that
PRESENTLY these are not put on the Forum site. For the time being I would
prefer that we interact separately by means of independent Email IDs.

I am sure you will understand my concerns.

Thanking You,

PRAMOD DIVECHA.

I had applied for a mediclaim policy with HDFC SLIC in July 2009. They made me conduct a medical test costing Rs. 670 which I paid for. Then they made me consult a doctor for Rs. 250 which again, I had tp pay for. Now they are claiming my reports are faulty, and refusing to even register my complaint. The agent who had come to visit me is refusing to take my calls. This is causing great stress to me after having spent Rs. 920 and having submitted a mediclaim bill worth Rs 6150, I have had to go through immense mental harassment.

Please tell me what to do

F.A.No.960 OF 2008 AGAINST C.C.NO.38 OF 2007 DISTRICT CONSUMER FORUM-II VIJAYAWADA
Between
1. M/s HDFC Standard Life Insurance Co.,Ltd.,
rep. by its Chairman and Managing Director
having regd., office at Raman House, HT,
Parekh Marg, 169, Backbay Reclamation
Mumbai-400 020

2. The Branch Manager
M/s HDFC Standard Life Insurance Co.,Ltd.,
Vijayawada Branch, 1st Floor, ML Towers
Door No.40-1-182, M.G.Road, Labbipet,
Vijayawada-10
Appellants/opposite parties No.1&5

A N D

1. Smt Managalapathi Jyothi Kumari
W/o late Junapudi Kingsley Isaiah
R/o D.No.31-7-7B, Goginenivari Street
Maruthinagar, Vijayawada-520 004,
Krishna Dist

Respondent/complainant

2. The General Manager,
M/s HDFC Standard Life Insurance Co.,Ltd.,
Raman House, HT Parekh Marg,
169, Backbay Reclamation, Mumbai-020

3. The Divisional Manager
M/s HDFC Standard Life Insurance Co., Ltd.,
Division of Vijayawada area, A.P.,
At B-Wing, 5th Floor, Eureka Towers,
Mindspace Complex, Link Road, Malad (West)
Mumbai-064

4. The Head Operations,
M/s HDFC Standard Life Insurance Co.,Ltd.,
5th Floor, Towers, Mindspace Complex, Link Road
Malad (West); Mumbai-400 064



5. T.Mallikharjuna Rao
Consultant M/s HDFC Standard Life Insurance
Co., Ltd., Vijayawada Branch, Consultant Code:A0010188
C/o 1st Floor, HDFC Standard Life Insurance Co., Ltd.,
At M.L. Towers, Dr.No.40-1-182, M.G.Road,
Labbipet, Vijaywada-10

6. D.V.Raghuram
BDM/CAM HDFC Standard Life Insurance Co., Ltd.,
C/o Vijayawada Branch, at M.L.Towers,
Dr.No.40-1-182, M.G.Road, Labbipet, Vijayawada-10.
(R2 to 6 are not necessary parties)
Respondents/opposite parties no.2,3,4 & 6 & 7

Counsel for the Appellants Sri D.Seshadri Naidu

Counsel for the Respondent no.1 Sri Kota Subba Rao

Counsel for the Respondents Not necessary parties



QUORUM: SRI SYED ABDHULLAH, PRESIDING MEMBER

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER

WEDNESDAY THE FOURTH DAY OF NOVEMBER

TWO THOUSAND NINE



Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

Opposite parties are the appellants.

Aggrieved by the order of the District Forum-II, Vijayawada in C.C.No.38 of 2007, the appellants have filed the appeal contending that the District Forum erred in partially allowing the complaint in spite of the fact that the husband of the respondent suppressed material facts at the time of obtaining the policy and that any peculiarity of the facts of the case would be borne by hasty happening of the evidence.

The husband of the respondent during his life time obtained insurance policy bearing No.10397860 commencing with effect from 29.10.2005. The husband of the respondent submitted proposal on 13.10.2005 by paying annual premium of Rs.50,000/- through cheque bearing No.505901. The proposal was accepted with the terms and conditions mentioned therein. The insured had also paid additional single premium of Rs.50,000/- in advance through cheque bearing No.505909 dated 3.11.2005. The premium was accepted by the appellants. On 1.1.2006 the insured died due to Posterior Dirculation Stroke while undergoing treatment in Help Hospital, Vijayawada. Subsequent to the death of her husband, the respondent had lodged a claim with the fifth appellant. The appellants no.1 to 5 refused to pay the policy benefits to the respondent on the ground that her husband had not disclosed that he was suffering from hypertension in the proposal form. The respondent had submitted that at the time of submitting proposal form of her husband, the appellants had scrutinized the information given therein as also that they had got examined him through their panel doctor. It was submitted that only after satisfying themselves with the information furnished in the proposal form, the appellants had accepted the proposal and issued HDFC Unit Link Young Star Plan Policy. Further it was submitted by the respondent that her husband had not suffered from hypertension at any point of time. It is her version that on 23.12.2005 about two months after the issuance of the insurance policy, her husband was admitted to the Help Hospital where he died of Posterior Dirculation Stroke. Upon repudiation of her claim, the respondent had approached the District Forum by filing complaint contending that her husband had never suffered from hypertension as also the repudiation on that ground was arbitrary in the light of examination of her husband by the panel doctors of the appellants at the time of issuance of the insurance policy.

The appellants had resisted the claim of the respondent contending that there was abundance of medical evidence which points out that the deceased, husband of the respondent at the time of taking the policy stated gross falsehood and submitted inaccurate and incorrect statement with an intention to mislead the appellants and obtained benefit to which he would not have been normally entitled to, had he made a frank and honest disclosure of all the material particulars of the ailment he was suffering from. The payment of two premiums on 29.10.2005 and 3.11.2005 is admitted. It was submitted that the insured died on 1.1.2006 due to Posterior Circulation Stroke which was incorrectly mentioned by the respondent as Posterior Dirculation Stroke. The payment of single premium in advance would raise any amount of suspicion which necessitated the appellants get the claim investigated. It was submitted that at the time of obtaining the insurance policy, the deceased disclosed that he was suffering from diabetes for last 10 years and that he was under regular treatment of Dr.T.Rajyalakhsmi. Accepting and treating the information furnished by the deceased as true, complete and correct, the appellants rated up the premium payable by the policy holder by 125% in view of history of diabetes for a sum assured of Rs.2,50,000/- with the date of commencement of the policy on 29.10.2005. The insured died within two months from the date of issuance of the insurance policy. On 2.2.2006 the respondent had submitted her claim along with necessary papers which revealed that the insured died due to Posterior Circulatory Stroke with cardio respiratory arrest. The investigation revealed that the deceased was suffering from hypertension since more than a year and he was under the treatment of his family doctor Dr.T.Rajya Lakshmi. The doctor had issued certificate dated 24.3.2006 that the deceased was a known diabetic and known hypertensive as also that he was advised Atenolal 50mg for controlling hypertension.

In the proposal dated 13.10.2005 the deceased had mentioned that his family doctor was Dr.T.Rajya Lakshmi and he deliberately suppressed the fact that he was suffering from hypertension and was under regular treatment thereof. The documents obtained from the Help Hospital on 23.12.2005 would establish that he died on 1.1.2006 and that he was a known patient of hypertension for more than a year thereto.

The District Forum has allowed the complaint with a direction to the appellants the premium collected an amount of Rs.50,000/- + Rs.50,000/- a total sum of Rs.one lakh along with interest @ 9% per annum and costs.

The point for consideration is whether the repudiation of the claim by the appellants is justified?

The husband of the respondent during his life time had obtained insurance policy bearing No.10397860 from the appellants with the commencement of the insurance policy w.e.f., 29.10.2005 and duration of the policy was about seven years on payment of annual premium of Rs.50,000/-. It is not in dispute that the respondent was appointed by her husband as his nominee in the insurance policy. The sum assured under the insurance policy is Rs.2,50,000/-. On 1.1.2006 the husband of the respondent died in Help Hospital, Vijayawada due to Posterior Circulatory Stroke. The appellants had repudiated the claim of the respondent that her husband had suppressed the material fact in regard to his health that he was suffering from hypertension at the time of filling up the proposal form and obtaining insurance policy. The appellants had relied upon the certificate issued by Dr.T.Rajyalakshmi to contend that the deceased suffered from hypertension in addition to the diabetes. The deceased had specifically mentioned in the proposal Ex.B2 that he was a diabetic and was under the treatment of Dr.T.Rajayalakshmi. It is the contention of the appellants that the deceased has only mentioned about diabetes in the proposal form and he had intentionally omitted to mention about the blood pressure i.e., hypertension that he was suffering from.

A perusal of Ex.B9 copy of certificate dated 24.3.2006 issued by Dr.T.Rajya Lakshmi show that the deceased was known diabetic and known hypertensive and he was suffering from hypertension for about one year prior to the date of issue of Ex.B9. The out patient card Ex.B10 and doctor notes Ex.B11 issued by Help Hospital, Vijayawada would show that the deceased was known hypertensive for about one year. Ex.B10 was issued on 23.12.2005 and Ex.B9 was issued on 24.3.2006. Thus it is to be seen the omission to state hypertension that the deceased suffered from, is whether a material fact which ought to have known the appellants at the time of issuing the insurance policy. Admittedly, the deceased insured had specifically mentioned in the proposal form that he was a known diabetic and he was taking treatment for the disease thereof.

In the proposal form Ex.B2, the deceased had stated that he was hospitalized and also had undergone surgery during the last five years prior to the date of submitting Ex.B2. He had given answer in positive to the question whether he was suffering from diabetes and in regard to other problems such as high B.P., respiratory disease, Tuberculosis etc., he had given the answer negative. However, a questionnaire was said to have been filled up by him inview of the answer (yes) as was furnished by him to the question whether he was a diabetic. It is interesting to see that the appellants have not filed questionnaire that was submitted by the deceased insured at the time of filling up of the proposal. The deceased insured had stated in proposal that he was diabetic for the past 10 years and the diabetes said to have been diagnosed in the year 1995. He had stated that initially he was treated by Dr.Y.Sadasiva Rao and at the relevant time i.e., at the time of submitting the proposal form he was under the treatment of Dr.T.Rajyalakshmi. It is pertinent to note that he had mentioned the name of the tab. Glynase MF (5 mg.). In this backdrop it is to be seen that whether hypertension was as was contended by the appellants a material fact to mislead them to issue the insurance policy.

It is common knowledge that a person suffering from diabetes over a decade would not be at the risk of hypertension. Just merely ticking in negative to the question whether he was suffering form hypertension, tuberculosis, cancer etc., cannot be construed as material fact and omission of the disease stating or giving reply to the question under clause no.6 of the proposal in any manner can be said to be a material fact so as to mislead the appellant as to the question of rating the risk of the deceased insured. The doctor notes issued by Help Hospital, Vijayawada would establish that the cause of death of the deceased was due to Posterior Circulatory Stroke which the appellants had failed to establish had any nexus with the hypertension.

The deceased was a retired employee i.e., lecturer. He had specifically mentioned in the proposal that his date of birth was 14.8.1947. It is also an admitted fact that he was a diabetic and he had given an answer in positive to the question whether he was suffering from any illness or taken any medicines or pills or drugs. A fact is said to be material in the given situation provided it has not been within the knowledge of the insurance company. An elderly and aged man is risk prone by hypertension and in view of his age as also due to the debilitating disease, it cannot be said that he was not hypertensive. The disclosure of diabetes that the deceased suffered from itself is an ample circumstance to show that he was with hypertension. It cannot be said that it is not within the knowledge of the appellant that an aged man as the deceased was hypertensive. To constitute suppression of the material fact, it is not sufficient to state that the deceased has suppressed the fact that he was suffering from hypertension at the time of submission of proposal. Had the deceased was entertaining an idea of suppressing the fact that he was suffering from hypertension he would not have disclosed that he was a diabetic and was under the treatment of Dr.Sadasiva Rao at the initial stage of the disease and subsequently under the treatment of Dr.T.Rajyalakshmi. Therefore, the disclosure of diabetes by the deceased had the implication of the imputed knowledge of the fact that he was also suffering from hypertension and as such the appellants cannot contend that the deceased omitted to state that he was hypertensive is a material fact to have bearing upon decision making as to the question of issuing the insurance policy. It is not the case of the appellants that very omission of the hypertension would have affected issuing the insurance policy. It is their contention that at the most the rating they have fixed would have been different had the fact of the disease being hypertensive was brought to their knowledge. As aforesaid, the imputed knowledge that the deceased was diabetic and hypertensive as well estop the appellant from contending that it was a material fact that the deceased ignored to state in the proposal in regard to the hypertension that he was suffered from.

In view of the aforesaid discussion we are of the opinion that mere omission to state that the deceased was hypertensive in spite of the fact that he had categorically stated that he was diabetic and was under the treatment of doctors over a period of decade prior to the date of submitting the proposal to the appellants. Therefore, we do not see any reason to interfere with the order passed by the District forum for the aforesaid reasons though not upon the reasons whereof the District forum had come to the conclusion.

In the result the appeal is dismissed confirming the order of the District Forum with costs of Rs.2,000/-.

Appeal no. FA-9/816
(Appeal against the order dated 16.07.2009 passed by District Forum-(New Delhi) in complaint case no.1136/2007)

HDFC Standard Life Insurance Co. Ltd.,

A-22, Community Centre,

New Friends Colony,

New Delhi-110025.

Also Having Branch Office at :
H-69, Ist floor, Outer Circle,

Connaught Place,

New Delhi-110001.

…..Appellant/OP

through

Sh. G.N. Murti, Advocate

VS

1. Mrs. Sumar Grover

W/o Late Shri Rajeev Grover



2. Kajal Grover (Minor)

3. Vaishali Grover (Minor)

(Daughters of late Shri Rajeev Grover

Represented through their next

Friend mother and natural Gurdian

Mrs. Suman Grover)



4. Smt. Raj Rani

W/o Shyam Lal Grover,

Mother of late

Shri Rajeev Grover

5. All Residents of 16-A/1A

Shahdara, Jawala Nagar Chowk,

Delhi-110032.
……Respondents/complainants

CORAM



Justice Barkat Ali Zaidi, President.

M.L. Sahni, Member



1. Whether reporters of local newspaper be allowed to see the

judgment?



2. To be referred to the reporter or not?



M.L. SAHNI, MEMBER



1. Appellants , who were the Op before the District Forum, have challenged the order dated 16.07.2009, passed by the District Forum, New Delhi, directing the Appellants to pay to the Respondents/complainants the insurance claim of Rs. 1,00,000/- and compensation of Rs. 40,000/- with cost of litigation of Rs. 10,000/- in complaint case no. 1136/2007.



2. Admitted facts, briefly stated are that, late Shri Rajeev Grover- husband of the Complainant/respondent No. 1 approached the Appellant by submitting a proposal on 24.09.2003 for issuance of the policy known as HDFC Children’s Double Benefit Plan Policy for a sum assured of Rs. 1,00,000/-. The Appellant issued Policy bearing No. 245406 for a sum of Rs. 1,00,000/- on 30.09.2003 with risk commencing from as 24.09.2003 for a period of 20 years with quarterly premium of Rs. 1,342/-. The said policy got lapsed in December, 2004 as Shri Rajeev Grover failed to pay premium, However, Shri Rajeev Grover vide a Revival Form submitted on or about 4.4.2005 revived the policy by paying the premium due. The policy was revived with full benefits.

3. On 22.05.2006 the Appellant was informed about the death of Shri Rajeev Grover by the Respondent/Complainant No. 1 and death claim was submitted by her on 12.06.2006. The cause of death as per the death claim statement was stated as MDR TB with Heamoptysis with Hemorhagic Shock. Shri Rajev Grover was last treated at Pushpanjali Medical Centre.

4. The Appellant/OP repudiated the death claim vide letter dated 19.06.2006, on the ground that Shri Rajeev Grover willfully and deliberately failed to disclose in the proposal form, the fact that he was a known case of TOF; and BT Shunt Operation was carried on him when he was 13 years of age.

5. The Respondents/complainants filed a complaint to the Insurance Ombudsman against the repudiation of the claim by the Appellants, which was dismissed vide order dated 08.03.2007. Thereafter, the Respondents/complainants filed a compliant before the District Consumer Forum on 31.10.2007, which lead to passing of the impugned order.

6. In the present appeal, the Appellants have assailed the impugned order mainly on the ground that Ld. District Forum did not appreciate clause 9 of the Policy, which reads as follows :

“ Incorrect information and Non Disclosure :

Your policy is based on the application and declaration which you made to us , however, if any of the information you provided is incorrect we reserve our right to vary, which may be payable and further if there has been non disclosure of a material fact then we may treat your policy as void”



7. It is also contended that the law as laid down in the case of P.J. Chacko and Anr. Vs Life Insurance Corporation of India (AIR 2008 SC 424) was not considered by the Forum , which categorically states that :

“If a person makes a wrong statement with knowledge of consequence from pleading that even if such a fact had been disclosed, it would not have made any material change.

A deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law.”



8. We have heard the Ld. Counsel for the Appellant and have gone through the material on record. We have also carefully examined the impugned order in the light of the contentions of the Appellants briefly stated above.

9. The main plank of defence of the Appellants is the “Discharge Summary” issued by Dr. Ashok Grover, whereby it is reported that the husband of the Respondent/complainant was suffering from TOF(Tetrology of Fallot). Shri Rajeev Grover for the first time consulted the said Doctor on 20.10.2005 and was diagnosed to be suffering from Pulmonary Koch with Heamoptysis. The discharge summary further mentions that Shri Rajeev Grover was a known case of TOF and BT Shunt Operation had been carried out on Shri Rajeev Grover when he was aged 13. Shri Rajeev Grover had been admitted in the hospital on 20.10.2005 ; 21.02.2006 and 15.05.2006 and he died on 15.05.2006.

10. The contention of the Appellant is that Shri Rajeev Grover willfully and deliberately failed to disclose in the proposal form the fact that he was a known case of TOF and BT Shunt Operation was carried on him when he was 13 years, accordingly the appellant repudiated the death claim made by the Respondent/ complainants vide letter dated 19.06.2006.

11. We have thoughtfully considered the facts of the case in it entirety . We find the facts of P.J. Chako’s case (Supra) distinguishable from that of the present case. No doubt , the Insured /propser deceased Shri Rajeev Grover failed to inform in the proposal form about his illness and BT Shunt-Operation which he had underwent, when he admittedly was aged about 13 years. As per Appellant’s own case, the deceased had submitted the proposal form for insurance on 24.09.2003, when he was 34 years of age i.e. 21 years after the Shunt Operation. Omission to mention about this fact in the Proposal Form after 21 years by no stretch of reasoning can be termed as a “ fraudulent act” or even “concealment” or “ non-disclosure of information” to be considered as violation of clause 9 of the policy . As per the cited judgment also, bonafide intention in not disclosing the previous ailment/ disease by the proposer is excusable. In the instant case, we find no ‘mala-fide’ on the part of the Insured in omitting to disclose that he had undergone Shunt-Operation at the age of 13 years, whereafter he had been leading a normal life had , married and had three children, the eldest being 12 years. In the cited case the insured died within six months of taking of the insurance policy. In the instant case the insured-husband of the complainant died after three years of the insurance. The facts of the present case are quite dis-similar to that of P.J. Chacko(Supra) relied upon by the Appellants.

12. We , therefore, find no merit in this appeal and hence dismiss it in limine at the admission stage itself.

13. FDR / Bank guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.

14. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and , thereafter , the file be consigned to Record Room.

Dear Sir,
This is with refrence to my above plan in wich I have requested to send my dues along with detail statement.I made payments worth Rs200250/the last payement made on 8th Feb 2007.I send more than 10 reminders &visited to there office at Rohni Delhi more than 8times.Now after heavey persuations I got Cheque of RS 60708.22/ with huge deductions ,The details of such deduduction not given to me and not in accardance to policy agreement.

My claim is for following:-

1)Details of accounts of deductions.
2)Delay in payments and hence intrest @18% from the due date.
3)Campanciation for the huge harrasment and expences incurred by me.
In view of unjustified payments of Rs 60,708.22 I have handed over my cheque to Rohni office.
Since I am old and retired person I can not move pillar to post hence requesting you to take up this matter and ask party to make me justified payments along with intrest and campanciation at the earliest.
With the hope of prompt action.
Swatantra Kumar Maheshwari.
C9/1 FFloor,Rohni 15.
Delhi 110089.
ph no.09311647372
email id:- swatantra_maheshwari2004@rediffmail.com

Respect Sir/Mam,
I am working with HDFC SLIC as SDM in Vasant Vihar, New Delhi in november 1st i m back to my hometown Lucknow because of Diwali festival n also for my mother is not well dats days n i am back to delhi on 11th of nov.nw my Team Leader Creating a problem for me.Nw he is not taking me back on job n talking to me rudely m joining date in HDFC SLIC is on 19 nov 2010.Please Sir/Mam solve this problem as soon as possible.i am very thankfull to you.


THANKYOU
YOUR'S SINCERLY
ANKIT DWIVEDI
+919711590117

My complain is that HDFC Standard life policies are been sold through HDFC Bank's invest advisor Mr.Anirban Das sitting in the HDFC Bank Ganesh Chandra Avenue Branch,Kolkata who does not have complete knowledge of the product and selling to the customer.I frankly told Mr Das that my age was 58 years and Iwas going to be retired. I have a HDFC Young Starpolicy,where preminum Rs 24000/.I told Mr Das Icould not continue my policy after retirement.He told me that this is like a Bank Fixed Deposit Plan.After few daya when Igot the Insurence kit went to Mr Das and told him this is the HDFC Saving Assurence Plan.Mr Das and his colleague argued with me and told me you can continue 3 years then you discontinue or stop the policy.I enquired HDFC Customercare that if I discontinued after 3 years how can I get.They told me first year preminum forfitued and 2nd and 3rd year half of the preminum paid by me.We as a customer are feeling cheated when I know that they have misguided/cheated and now customer has to run for getting his money.Kindly advice me any possiblity of refund and to ensure that this kind of practice are not followed in any private BANK.I have given only 1st year preminum Rs24000/. MY HDFC SAVING ASSURENCE POLICY NO 13942549.

Dear Sir,

I have taken a Unit linked Young Star policy from HDFC Standard Life Insurance on 6-11-2006 with a lock in period of 3 years. I have opted for auto debit facility from my saving account for paying the premium amount annually on 16th Nov.

Now since I was in dire need of money for making payment to the property dealer for booking a flat, I have surrendered the policy at HDFC-Life Sector-14, Gurgaon branch on 12th Nov 2011 with a request that I need a money urgently if the money can be settled in a weeks time and I was given a assurance from Mr Luv Kush Gupta (Ops- Manager at HDFC-Gurgaon) that the amount will be credited into the benefeciary account in 4-5 working days.

On 16th Nov I came to know that another Rs 50,000/- got debited from my saving account on 16th Nov as the bank missed to de-register the facility after I surrendered the policy. Now I am regularly visiting the HDFC-Branch and have submitted the complaints but till date no action has been taken by the bank in refunding the extra amount debitted and nor they have settled the policy amount.

I have missed the opportunity of buying a flat as I could not deposit the initial booking amount as per the commited date which has resulted into mental agony and ill health as I am feeling that my hard earned money got lost and is of no use.

Need your immediate support in getting my money back with interest and reimbursement on account of mental harassement I had undergone these days.

Mu Policy Number is 10772227 in the name of VINAY KUMAR GUPTA with HDFC-Standard Life Insurance Sector-14 Gurgaon.
My contact number is 9899233130.

Originally Posted by admin

Sumita Bhalla wd/o S. Brij Bhushan Bhalla resident o C-209, Urban Estate, Phase-I, Jamalpur, Ludhiana.

….Complainant.
Versus

1- HDFC Standard Life Insurance Co. Ltd. SCO, 126-127-128, Ist Floor, Kalinga Tower, Feroze Gandhi Market, adjoining Hotel Grewals’, Ludhiana through its branch Manager.
2- HDFC Standard Life Insurance Co. Ltd., having its registered office at Raman House, H.T. Parkash Marg, 169, Backbay Reclamation Church Gate, Mumbai, 400020 through its Managing Director.

….Opposite parties.

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present: Sh. Rajesh Mehra Adv. for the complainant.
Sh. P.S. Gumber Adv. for opposite parties.

O R D E R

T.N. VAIDYA, PRESIDENT:

1- Sh. Brij Bhushan Bhalla was husband of the complainant. He had taken life insurance policy no.000000222285 of Rs.20 lacs, commencing w.e.f. 7.8.2003 from the opposite party. Under the policy, Rs.6750/- was payable half yearly and due date of the last premium was 7.2.2027. Complainant was nominee of the policy holder. Husband of the complainant died on 16.12.2005. She after his death, lodged claim with the opposite party alongwith requisite certificates, forms and documents. But opposite party vide letter dated 27.7.2007 repudiated claim on ground that he deceased had concealed his illness o brain tumor at the time of revival of the policy, which allegedly had lapsed on account of non payment of the premium. This repudiation is assailed by the complainant by filing this complaint u/s 12 of the Consumer Protection Act, 1986, to be null, void and illegal. It is averred that assured husband of the complainant had never concealed serious ailment at the time of filing application for revival of the policy. Hence, ground taken by them, is unjustified. Therefore, complainant entitled for policy amount of Rs.20 lacs.


2- Opposite party in their reply, pleaded that complaint is not maintainable. Because the assured had intentionally and willfully concealed the factum of his illness. As such, there was a clear cut violation of the terms and conditions of the policy. Complainant has no locus standi to file complaint, due to fault committed by her husband. It is averred that policy was issued on 29th August, 2003, on the basis of application dated 7th August, 2003. The policy lapsed due to non payment o premium, was reinstated on 23.11.2004 on the basis of revival request dated 17.11.2004 of Sh. Brij Bhushan Bhalla. At the time of revival of the policy, the assured had declared that there was no change in his health between the date of application for insurance and the date of revival request. Said policy again lapsed and was reistated on 31.10.2005, on the basis of revival request dated August, 2005 of Sh. Brij Bhushan Bhalla. In that request, again assured had declared that there was no change in his health between date of application for insurance and the date of revival request form. He further declared that information given in the application is true and not withheld any material fact within his knowledge. But subsequently on investigation, it was established that life assured had been diagnosed of brain tumor long before first revival on 17.11.2004. Hence, declaration given by the assured, was false. Had he disclosed the ailment, the company would not have revived the policy. He willfully and knowingly gave wrong declaration in both revival request forms. Hence, he breached terms and condition of the policy. Therefore, claim was rightly and legally repudiated.


3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.


4- Sole question on which hinges decision of the complaint is whether at the time of revival of the policy, assured did not disclose ailment of brain tumor and consequently, breached terms and conditions of the policy. Because rest of the claim that assured had taken original policy from the opposite party, effective from 29.8.2003, is not in dispute. Repudiation letter Ex.C3 dated 27th July, 2007 goes to show that the policy was issued to the assured on 29.8.2003 on the basis of his application dated 7.8.2003. This policy lapsed due to non payment of premium and was reinstated on November 23, 2004, vide revival letter Ex.R2. Revival request from Ex.R2 clearly spells that assured Brij Bhushan Bhalla on 17.11.2004, declared that between the date of proposal and this declaration, there has been no change in the health of the life assured.


5- Policy again lapsed and was got revived by revival request form x.R3 dated 21.10.2005 of the assured. At that time also, assured gave another declaration that between date of proposal and his present declaration, there has been no change in the health of the life assured.


6- In order to show that when on both occasions, policy was got revived by the assured on 27.11.2004 and 21.10.2005, he was suffering from brain tumor, relied on medical certificate Ex.R21 dated 9.9.2004. This medical certificate was issued in favour of Sh. Brij Bhushan Bhalla by Mohan Dai Oswal Cancer treatment & Research Foundation, Ludhiana, where he took treatement. It is mentioned in the certificate that since 6.9.204, Sh. Brij Bhushan Bhalla assured is being treated for brain tumor as OPD patient.


7- Ex.R19 is discharge summary of Sh. Bhalla, reflecting that he remained in the hospital from 2.8.2004 to 4.8.2004. He was diagnosed of suffering from Decompression of tumor.


8- As such, it is apparent that when on his application, the assured on 27.11.2004 and 21.10.2005, got his insurance policy revived vide applications Ex.R2 and Ex.R3 respectively, he was already suffering from brain tumor. For such ailment, had taken treatment in Mohan Dai Cancer Hospital, Ludhiana. But in his both declarations Ex.R2 and Ex.R3, had wrongly and falsely stated that between the date of proposal and the declaration, there was no change in the health of the life assured. So, it means he had given wrong information qua his health, when got the policy revived.


9- It is in this backdrop to be seen whether due to suppression of ailment at the time of revival of the policy, opposite party was justified in repudiating the same.
10- Such like questions came for consideration before the Hon’ble National Commission in Asha Devi Vs Life Insurance Corp. of India 208(3) CLT-665(NC). In that case, the assured had suppressed pre-existing disease of renal failure and had given declaration of good health at the time of renewal of the policy. That declaration was false. So, order of Hon’ble State Commission, allowing appeal of insurance company, was upheld.


11- Hon’ble UT State Commission, Chandigarh in Shakuntala Kumari Sahni Vs LIC III(2004)CPJ-55, has held that contract of insurance is of good faith, it gets vitiated if concealment of facts about true state of health, is involved. For withholding heart ailment, was equated to suppressing facts, empowering insurance company, to repudiate the claim.

12- For suppressing ailment in another case reported in Senior Divisional Manager Vs Smt. Raksha Goyal II(2002)CPJ-92(NC), Hon’ble National Commission has also held that giving false declaration qua health, would vitiate the contract of insurance.


13- Contrary, on behalf of complainant, it as agued on the basis of case reported in Sunita Aggarwal Vs Life Insurance Corp. & Ors. 205(2) CLT-449(MP State Commission) that revival of lapsed policy would not constitute a new contract. With due respect, venture to state that facts of that case were quit distinct and different. Hence, ratio of that case would not be attracted to the case in hand.


14- In the present case, it is apparent that qua his health, assured had given false declaration at the time of revival of the policy and then false declaration was given, not once, but twice. He had suffered brain tumor prior to revival of the policy. But did not disclose such fact. Hence, he appears to have intentionally and deliberately given false information qua hi health to the opposite party. Therefore, on this ground of committing fraud with them, opposite party in our view, was justified in repudiating the claim. Hence, finding no merit in the complaint, the same is dismissed.

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