Counsel for:-

The Complainant: Self

The Opposite Party 1   :Shri T.K.Thakur & R.N.Mahakud.   

The Opp.Party No.2&3: Shri D.K.Agrawal      

                                      JUDGEMENT

Shri A.K.Patra,President:

1. The captioned consumer complaint is filed by the complainant named above inter alia alleging deficiency in service on the part of the Ops for repudiation of the  claim of insurance benefit made on account of the death of  insured husband .
2. The complainant seeks for the following reliefs:- (i) A direction to the OP 2 for settle the claim and to pay insurance amount to OP 1 .(II) a direction to op 1 to close the house loan account there in the name of deceased Dhanujaya Mahala. (iii)  a direction to OP 1 to return all original documents mortgaged in the bank.(iv) a direction to pay compensation of Rs.1,00,000/-(one lakh ) for mental agony and sufferings for not settling the loan amount to the OPs jointly and severally .(v) to pay litigation expenses of Rs.10,000/- and any other relief as the Honorable Forum/Commission may deems fit & proper for the best interest of justice.
3. The factual matrix leading to the case of the complainant as emerged from the case record is that, her husband late Dhanurjaya Mahala had obtain   a house loan of Rs.7,00,000/-  from OP No.1-/ PNB, Titlagarh branch by mortgaging his 25 decimal  of  land  while he working as Stenographer  in the office of Minor Irrigation Department of Khariar. As per the instruction of the OP No.1/bank the loan was insured with PNB Metlife vide Policy No.21975420 depositing premium of Rs.25,000/-  towards the policy amount on 20.03.2016. During the policy period the husband of the complainant died on 18.02.2017. After the death of her husband the complainant met the OP No.1    with a request to release the death benefit under the said insurance made against the loan amount. She has   submitted all required documents i.e. original insurance policy, death certificate, medical documents etc. with “claim Form” for release of  insured amount and to settled the same against the  house loan their  due against her deceased husband.  But unfortunately the Ops denied to settling the claim on the ground that, the insured did not disclose the fact of his suffering from the ailment. Being aggrieved by the repudiation of her insurance claimed the complainant made a representation to the OP No.2 vide complaint No.31884712 dt.20.05.2019 and also to the PNB head office through e-mail for settlement of her grievance but it was not responded rather the OP No.1/bank is sending demand notice threatening to take possession of the said house and to auction the same. It is further contended that, out of fear the complainant had managed to repay Rs.1,10,700/- on installment basis from 11.09.2018 to 15.05.2019. It is further contended that, the OP 1 had sanctioned a loan of Rs.35,000/- in the name of the daughter of the complainant and had adjusted the same in the housing loan repayment. Several representation of the complainant to release the insurance benefit & to settle the loan out of the insurance amount is not responded by the Ops rather the Ops have deliberately refused the genuine clam of the complainant. It is further contended that , deceased husband had no prior knowledge that, he was suffering from any diseases for which it cannot be expected from him to mentioned  all  these thing in the proposal Form for obtaining insurance policy. It is further submitted that, insured husband of the complainant  has never suppressed any material facts with any fraudulent intention  rather, it is the duty of the insurance company to investigate the health issue if any before issuing the insurance policy. It is further contended that, once accepting insurance and having entered into agreement without verifying facts insurance company cannot wriggle out of liability. It is alleged that, insurance company repudiate the genuine claim of the complainant on such technical & flimsy ground depriving the fruits of life insurance caused financial loss & mental agony need to be compensated  .Hence this complaint .
4. On being notice, the Ops appeared and filed their respective written version denying the complaint allegation on all its material particulars.
5. The OP 2 & 3 / Insurance Company submitted that, claim of the complainant is rightly repudiated on the ground of suppression of material facts by the deceased life assured ( DLA) while taking insurance policy. It is further submitted that, the insurer does not have any personal knowledge of life assured so the response provided in the proposal form play substantial role while undertaking risk and that, question pertaining to health & prior existing medical condition specifically asked in the proposal form and status thereof are material for under writing risk in the life of the insured. It is further contended that the deceased life assured (DLA) has suppressed the material facts even after specific question to that aspect and that, the DLA suppressed the facts of his suffering from chronic liver diseases since prior to issuance of subject policy and that, it was there mentioned in the medical documents that, the DLA was consuming alcohol since last ten years i.e. prior to issuance of subject policy. It is further contended that, DLA also suppressed the material fact that, he had undergone ultrasound of abdomen & pelvis on 18.08.2014 i.e. prior to issuance of subject policy wherein under the heading it has been categorically mentioned as hepatic encephalopathy which is defined as a spectrum of neuropsychiatric, abnormalities in patients with liver dysfunction which prove that DLA was not only suffering from liver disorder but also under gone test for the same hereby implying that he was well aware of the same. However, in the proposal form for the said insurance policy, violating the fundamental principle of insurance as well as term of subject policy, the DLA has suppressed the truth and obtained the policy fraudulently. It is further submitted that, in case DLA had disclosed above stated history at the proposal stage, the respondent insurance company could not have issued subject insurance policy. It is further submitted that, the complainant has approached the Hon’ble Commission with unclean hand for which this complaint needs to be dismissed and that, the damages claimed are arbitrary, without basis and is an abuse of process of law.
6. The OP 1 appeared and filed their written version admitting the fact that, the husband of the complainant had taken a term loan vide account No.346090/11/2017/62 for construction of his house. It is submitted that , at no point of time the bank has given any instruction to the borrower deceased Dhanujaya Mahala to insure the loan rather from his own interest he has preferred to take the life policy from PNB MetLife India Insurance Company Ltd  and accordingly he had submitted the duly filled & signed proposal to the concerned authority. So there is no connection of the life policy taken by the borrower with the loan and also the loan was not insured by the bank against the mentioned policy No.1975420 rather bank has insured the moveable properly against which the house loan was sanctioned. It is further submitted that, the complainant has approached the OP 1 for obtaining the insurance benefit for settlement of loan and intimated about the death of her husband and approached the OP 1 to help her for releasing of death benefit from the OP 2 and accordingly she was guided for making direct contact with PNB Metlife India Insurance Company Ltd, for settlement of claim. It is further stated that, at no point of time the complainant was asked to deposit any documents for settlement of insurance claim and to settle the house loan due against her husband. It is further submitted that, the OP 1 and insurance company i.e. OP 2 & 3 are separate entity. The OP 1/ Bank have no authority to settle the insurance claim against the house loan because the insurance policy has no relation with the housing loan. It is further submitted that , after the death of borrower Dhanurjaya Mahala the complainant and her daughter being the legal heir of the borrower has given a letter of forbearance addressing the OP 1 on 29.05.2018 and filed an affidavit shown by the complainant to take full responsibility  to pay the loan amount taken by her husband. In case of default in paying the regular installment by the borrower or in his absence, by his legal heirs/representative, the OP 1/Bank  has full right to issue demand notice for paying of the installment to regularize the said housing loan as per the loan agreement. It is further stated that, the complainant has paid Rs.1,10,700/- on installment basis from 11.09.2018 to 15.09.2019 on her free will as per her obligation and without any force or fear. It is further submitted that, the OP 1/Bank has sanctioned a loan of Rs.50,000/- under Mudra loan scheme to the Lusipama Mahala , the daughter of complainant, to start her own business on 15.05.2019 vide loan account No.608008900000270. The amount was never adjusted in the said loan account of the deceased father. The OP 1 admitted the fact of deposit of cash of Rs.35, 000/- in the loan account but it is of their free will and same was never adjusted from the loan advance to the daughter of the borrower. It is further submitted that, the OP 1 has never committed any negligence or deficiency in service in relation to settlement of insurance claim as it is concern to OP 2 & 3. It is further stated that, the complainant is not a consumer of OP 1 for the life policy taken from PNB Metlife/OP 2 & 3 but the complainant is a consumer of OP 1 in relation to the housing loan sanction to her husband as such complainant has no locus standi to file this complaint  against the OP 1 for non settlement of insurance claim by the OP 2 & 3. The complainant has suppressed the material fact and not come with clean hand as such this complaint is liable to be dismissed with cost.
7. Both parties lead their evidence on affidavit as prescribed in C.P.Act 2019 to substantiate their respective pleadings.
8. The complainant, to substantiate her pleading, has filed her evidence on affidavit the averment of which are corroborating with the averment of the complaint petition. She has also filed the self attested photocopy of:- (i) death certificate of her deceased husband Dhanurjya Mahala vide Registration No.120/2017, (ii) Legal Heir Certificate , (iii) Voted ID Card of the complainant, (iv) copy of email dt.19.05.2019,(v) copy of loan account status report dt.09.04.2019 of borrower deceased Dhanurjya Mahala.
9. The OP 1, to substantiate his pleading , has  filed the evidence affidavit of one Alok Kumar Bara ,the Branch Manager, PNB, Titlagarh averment of which are corroborating with the averment of the written version. He has also filed the self attested photo copy of the following documents  in support of their contention :- (i) application form for loan agreement of borrower Dhanurya Mahala(ii)Sanctioned letter(iii) Agreement for housing loan(iv)Mortgaged Deed(v) Agreement under OPDR Act(vi) Application of complainant Surama Mahala(vii) Affidavit of the Surama Mahala(viii) Undertaking of Surama Mahala & Lusipama Mahala(ix) Balance and Security Confirm letter(x) Insurance Policy vide No.346090/11/2017/62 for the period of dt.12.01.2017 to 11.01.2027 of standard higher and special perils policy  issued from the Oriental Insurance Ltd. towards the insurance of finance property(xi) Statement of Account vide No.6808800NC00000052 in the name of Dhanurya Mahala(xii) Application Form for loan under Pradhan Mantri Mudra Yojana of Lusipama Mahala(xiii) Affidavit of Lusipama Mahala(xiv)Letter of sanctioned of loan of Rs.50,000/- (xv) Agreement for loan with Lusipama Mahala(xvi) Statement of Account NO.6808008900000270 in the name of Lusipama Mahala.
10. The OP 2 & 3, to substantiate their pleadings has filed the affidavit evidence of one Debendra Burma, Manager, Legal at PNB, MetLife India Insurance Company Ltd, the fact stated therein are corroborating with the averment of their written version. They have filed the following documents to proved their contentions and to  marked exhibited as evidence :- (a)  the photocopy of policy document, Exbt-1series , (b) Photocopy of  death claim form, Exbt- 2 series ,(c) photocopy of investigation report along with photocopy of affidavit of investigator Exbt-3 series , (d)  photocopy of medical documents in the name of DLA Exbt-4 series , repudiation letter Exbt-5 .
11. Heard. Peruse the material on record. We have our thoughtful consideration to the submission of rival parties and gone through the judgments cited by the learned counsel for the parties present.
12. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission are :- (i) Whether the complainant is the consumer of the Ops ? (ii)Whether there is any deficient service & unfair trade practice on the part of Ops caused injuries to the complainant?  And (iii) Whether the complainants are entitling for the relief(s) claimed?
13. The facts not in dispute are  that, deceased Dhanurjaya Mahala i.e. the husband of the complainant had availed a loan from the OP 1/PNB Bank  for construction of a house and said borrower died on 18.02.2017 and that, the complainant is the legal heirs/widow   of the deceased borrower and that ,during  his  life time borrower Dhanurjaya Mahala was insured with PNB Met Life & complainant is the nominee to received the insurance benefit in case of premature death of insured borrower and that, the insured borrower died on 18.02.2017 during the policy period and that, the insurance claim under the said policy is repudiated on 20.05.2019   by the insurer/ PNB MetLife India Insurance Company Ltd on the ground of suppression of material facts by the deceased life assured ( DLA) while taking insurance policy. It is also not in dispute that, the OP 1 has advanced loan to the daughter of the deceased borrower and that, the complainant & daughter of the deceased borrower has paid a part of the loan due against the deceased borrower. Accordingly we are of the opinion that, the complainant is the consumer of banking & insurance service of the Op 1 and OP 2&3 respectively.
14.  Insurance and death of the insured during policy period is not disputed. Op No.2& 3 submitted that, the claim of the complainant has been repudiated on the ground that, the member (DLA) has not disclosed correct information and suppressed the material facts of preexisting diseases in proposal Form submitted for subject insurance policy.
15.  The  OP  2 & 3 further submitted that, after receipt of death claim intimation  the Op 2&3 /insurer has  conducted an investigation  in order to verify the authenticity of the said claim and during the process of the claim investigation the truth of suppression of material facts by the insured( DLA) is found  and based on the investigation report it is concluded that , the DLA suppressed the facts of his suffering from chronic liver diseases there since prior to issuance of subject policy and that, it was there mentioned in the medical documents that, the DLA was consuming alcohol since last ten years i.e. prior to issuance of subject policy and that , DLA also suppressed the material fact that, he had undergone ultrasound of abdomen & pelvis on 18.08.2014 i.e. prior to issuance of subject policy wherein under the heading it has been categorically mentioned as hepatic encephalopathy which is defined as a spectrum of neuropsychiatric, abnormalities in patients with liver dysfunction which prove that, DLA was not only suffering from liver disorder but also under gone test for the same hereby implying that he was well aware of the same however , in the proposal form for the subject  insurance policy, violating the fundamental principle of insurance as well as term of subject policy, the DLA has obtained the policy. It is further submitted that , the DLA has intentionally & fraudulently suppressed such facts of suffering of the disease only to grab the insurance money as such, the death claim has been rightly repudiated.   Thus, we are of the opinion that, onus is there   on the part of Ops/insurer to prove their contention.
16. It is found that, the Op/insurance company in their repudiation letter dt.06.11.2017  has solely relied on the investigation report of one investigator namely Mr. Jogeswera Rao vide annexure 3 series  of their written version .But we found nothing material available on record to hold that, such documents have ever served to the complainants/claimants for their perusal & or have given any opportunities of being heard before repudiation of the claim rather it is found that, repudiation made  unilaterally  which, in our opinion, is  certainly an unfair act of the ops/insurance company.
17. During hearing of this case the O.P/insurance company has filed evidence on affidavit of one Debendra Burma, the Manager, Legal at PNB, MetLife India Insurance Company Ltd and produced photo copy of certain  documents to be marked as evidence such as:-  (a)  the photocopy of policy document, Exbt.1series, (b) Photocopy of  death claim form, Exbt. 2 series , (c) photocopy of investigation report along with photocopy of affidavit of investigator Exbt.3 series , (d)  photocopy of medical documents in the name of DLA Exbt.4 series , (e) repudiation letter Exbt.5 .However, the person investigated the matter has not been examined and the above referred documents/ photo copies filed by the ops/insurance company have not been authenticated to be true or have proved in accordance with law. Since neither the person who wrote the facts that, insured was suffering of the disease nor any one conversant with his handwriting & their signature was produce before this Commission for examination or has filed their evidence on affidavit in this respect as prescribed under C.P. Act to accept those documents as evidence in support of the pleadings of the op/insurer. Law is well settled that, it is necessary to proof the handwriting and signature of the person who had purportedly recorded the facts of suffering of the disease of deceased insured. As such those shall not be consider as evidence in favor   of the Op/Insurance company as to prove their contention.
18. Law is well settled that, placing documents in the case record or marking of the document as exhibits are mere reference and convenience of Commission and it has nothing to do with its evidentiary value. Even just because a documents is marked without objection will not dispense with the proved of the said documents in accordance with law.
19. Here in this case nothing contention there in the repudiation letter & grounds for repudiation are proved. In these circumstances it becomes necessary to examine the author of aforesaid history/past history i.e. the facts of suffering of the disease alleged to have their with the insured prior to obtaining of the insurance Policy or in case, he/she is not available to examine, some other person who is conversant with the handwriting of the author of the said history/past history i.e. the facts of suffering of the disease of insured is to be examined or could have obtained authentication of their relied  documents from the proper custodian of the same. There is no barred on the part of op/insurer to obtain authenticated documents/papers from the proper custodian of the same and to place in this case record to decide in support of their contention.  Only thereafter it can be consider to   decide as to whether facts of suffering of the disease as recorded on the above referred documents are true or false. In such circumstances we are unable the concluded that, the deceased insured has suppressed any material facts while obtaining the subject insurance policy as pleaded by the insurance company.
20. We found much weight on the submission of the   complainant that, the documents filed by the Ops as per their list of document in this case are nothing but self –serving documents having no authentication may not be hold trust worthy.
21.  We may relied on the decision of the Honourable Supreme Court of India held in  M. Chandra Vrs. M. Thangamuthu & another reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 that ,the  photo copy of documents filed by the Ops as per list of documents during hearing of this case without authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence. As such it may conclude that,   the Ops/insurer has failed to prove their contentions.
22. The Learned council for the Ops referred to many judgment  passed by the Hon’ble supreme Court & Hon’ble National Commission upon which we have high honour &  gone  through  it and learn the settled principle that , in the event of non discloser of material fact or suppression of material facts , insurer have every  right to repudiate the claim. We found that,  those case laws are not applicable in the present facts & circumstances of the case in hand  as it is not proved anywhere that, the policy holder was ever suffering from any disease and that, he has not disclose any material fact regarding his health condition while availing of the subject insurance policy. Repudiation of claim cannot be accepted merely on placing contention without proof. (Held, in Manik Chandra Pahari vrs LIC of India reported in 2017 ,NCJ ,378 (NC).)
23. Here in the present case, keeping in view of the admission of fact that, OP 1 /PNB Titlagarh  has provided loan to the deceased husband of the  complainants and that, he /the borrower was insured with the PNB Metlife India Insurance Company Ltd, vide policy no. 21975420 for sum assured of Rs 2,50,000/- with effect from 27 Aug 2016 and that, insured died on 18.02.2017 during the policy period and that, the complainant is the wife & nominee to received the insurance benefits in case of premature death of the insured under the policy is not seem to be any justification for nonpayment of claim under the policy in question to the complainants rather insurance claim is repudiated by the ops/PNB Metlife India  Insurance Company Ltd. is not justified.
24. Law is well settled that, Insurance Policy is taken for reimbursement or for indemnity of loss which may be suffered on account of insured peril, the services of the insurer cannot be said to have hired or availed for a commercial purpose hence, we are of the opinion that, the complainants is consumers of the Op/Insurance Company. Insurance claim as repudiated by the Ops/ PNB Metlife India  Insurance Company Ltd is found to be not justified rather caused injuries to the complainants as such , there is sufficient cause to file this complaint and this complaint is found to be in time well within the jurisdiction of this Commission  .
25. It is found that the OP 1/Bank has insured the financed property under standard  fire & special peril policy of  Oriental Insurance Company Ltd. vide policy No.346090/11/2017/62 effective from 12/01/2017 to  11/01/2027 for sum assured of Rs.7,00,000/-. The borrower has insured his life with PNB Met Life India Insurance Company Ltd  independently vide Policy No.21975420 for sum assured of Rs.2,50,000/- paying required premium with this respect. The complainant has failed to adduced any cogent evidence to hold that, the PNB/OP1 has ever induced the deceased borrower to take said life insurance policy of PNB Met Life India Insurance Company Ltd .  Accordingly the allegation that the OP1 Bank introduced the said life insurance policy without covering the loan sanction to the borrower  in case of premature death of the borrower. It is also found that the legal heirs of the deceased borrower i.e. the complainant & her daughter acknowledged & volunteers to repay the loan due against their deceased husband/father respectively. Hence, we found no deficiency of service or unfair trade practice on the part of OP1 /Bank towards the complainant.
26. Based on the above discussion & settled principle of law, we are of the considered view that, the complainant being nominee/widow is entitled for insurance benefit under the said insurance policy vide No. 21975420 of PNB MetLife India Insurance Co. Ltd. Repudiation of the claim is  found arbitrary & not justified which certainly caused financial loss & mental agony to complainant as such the ops 2 & 3 /PNB MetLife India Insurance Co. Ltd authority is found deficient in service . Accordingly the ops 2 & 3 / PNB MetLife India Insurance Co. Ltd authorities are jointly liable to compensate the injuries to the complainant by releasing the insurance benefit i.e. sum assured amount of Rs 2,50,000/-under the said insurance policy with interest @ 9% P.A from the date of filling of this complaint i.e from 04.09.2019 till its actual payment to the complainant and to pay cost of this litigation. Hence it is ordered.
6698606.  

           This consumer complaint is allowed in part against the Op 2(two) & 3(three) and dismissed against the Op 1(one) on contest with the following direction:-

1. The Ops 2&3 / PNB MetLife India Insurance Co. Ltd authorities are  here by directed to release the insurance benefit i.e. sum assured amount of Rs 2,50,000/-under the said insurance policy with interest @ 9% P.A from the date of filling of this complaint i.e. from 04.09.2019 till its actual payment to the complainant.
2. The Ops 2&3 / PNB MetLife India Insurance Co. Ltd authorities are   further directed to pay Rs 10,000/- only towards litigation expenses to the complainants.   
3. It is further directed that, this order be complied within 45 (forty-five) days from the date of received of this order failing which the ops 2&3 / PNB MetLife India Insurance Co. Ltd authorities shall  personally liable to pay Rs.500/- each per day as delayed compensation to the complainant till compliance of this order.

    Dictated and corrected by me.

                 President

                     I   agree.     

                                       Member                      

                                                                                                                                                           Member   

Pronounced, in the open Commission today on this 4^th day of October  2023 under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum and pandemic Covid-19 situation.  

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission .Ordered accordingly.