- This Consumer complaint is filed by one Nikita Balu Wankhade R/o Triveni Colony Congress Nagar, Amaravati against the Opposite Parties HDFC Standard Life Insurance Co.Ltd. Branch Office at Amravati and Head Office at Mumbai on 11/02/2019 under section 12 of Consumer Protection Act,1986.
The Complainant has claimed that she is the widow of one Balu Deorao Wankhade who was serving in Jeevn Pradhikaran, Uppa Wardha Department of Amravati and had purchased Life Insurance policy under the name HDFC Life, Click 2 Protect Plus bearing No.9433098 for the sum insured of Rs.50 lacs. The policy period is from 11/8/2017 for 37 years. The deceased had paid the annual premium of Rs.7,500/-. That on 3/11/2017, deceased died due to brain odema. The complainant intimated the fact to opposite parties and submitted insurance claim along with required documents on 5/12/2017 which is acknowledged by the Opposite party.
(ii) It is alleged that the opposite party demanded following documents vide their letter dated 8/12/2017.
- Bank statement of Life assured for last 2 years.
- Employers certificate.
- Post medical records of diagnosis and treatment taken in lifetime.
- Income proof.
The complainant submitted these documents.
(iii) It is alleged that the opposite party had again demanded following documents vide their letter dated 2/2/2018.
1.Leave record for past 2 years.
2.Mediclaim details for past 2 years.
3.Name, centre, Treating hospital and treatment papers where insured was treated for headache for 1 year (2016-2017).
It is alleged that inspite of submitting of these documents by complainant opposite party did not settle her claim.
(iv) It is alleged that the opposite party further demanded the same documents vide their letter 2/3/2018. The opposite party repeated the demand of same documents vide their letter 3/7/2018. It is contended that the complainant provided the documents with expectation of settlement of her claim.
(v) It is alleged that the opposite party vide their letter dated 14/9/2018 again demanded the following documents.
- Copy of medical report (Medical record submitted by the time of reimbursement.
- All treatment record from the treating doctor Dr.Deepak Kurhade.
- Medical record related to treatment taken for headache (2016-17).
It is contended that the complainant submitted these documents again on 23/9/2018.
vi) It is contended that while obtaining the policy the deceased and the complainant did not suppress any medical fact or pre existing disease.
vii) It is alleged that inspite of submission of all the documents the opposite party is not settling her claim.
viii) Complainant issued legal notice to Opposite party on 30/11/2018 which is not replied by opposite party.
ix) It is alleged that complainant has cause of action on various dates from the date of purchase of policy by deceased, date of death of deceased, submission of documents on various daes and issuance of legal notice to opposite party.
x) Alleging deficiency in service on the part of opposite party, the complainant has made prayer for directions to opposite party to pay Rs.50 lacs towards insurance claim with 18% interest from 3/11/2017 till realization and further direct to pay 10% penal interest and Rs.10 lac towards compensation for deficiency in service and unfair trade practice. Rs.50,000/- is demanded for mental agony alongwith suitable cost for litigation.
(2)
(i) The opposite party filed their written statement before the commission and denied the adverse allegations. It is contended that the complainant has filed this false frivolous vexatious complaint and abused process of law It is contended that this is not a consumer dispute covering under the C.P.Act. There is no cause of action to complainant to file consumer complaint.
(ii) However, the opposite party admitted the issuance of policy to the deceased.
(iii) It is admitted that they received the claim proposal and medical documents. It is contended that while assessing the claim, it seemed that DLA (Deceased life Insured) was suffering from CVT or CVST (Cerebral Venous Sinus Thrombosis) and therefore the opposite party demanded following documents.
1. mediclaim records of past 2 years.
2.Name of centre, treating hospital and treatment.
3.papers where the deceased was treated in last one year for headache (2016-17) of new claim form.
4. Submission of new claim form.
It is contended that the complainant did not provide these documents to opposite party. The submission of these documents is denied by opposite party.
3) Learned advocate/counsel Shri. appeared for the complainant. Learned advocate/counsel Shri. appeared for the opposite party.
4) After submissions of the parties, following points arose before us, we have noted them and answered them with reasons to follow.
1. Whether opposite party rendered deficiency in
Service and Unfair Trade Practice? affirmative
2. What order? As per final order.
(3) Reasoning (Point 1 and 2)
5) Learned counsel Shri.A Mohta argued for the complainant in the line of complaint. It is further argued that the opposite party have received all the pertaining documents and have signed for receipt of the documents and purposefully to avoid liability of claim, they have not settled the claim. It is also contended that the deceased did not suppress any material fact as to existing disease/ailment and treatment to him. He further argued that though the documents signed by the person has presumptive value that he read the term and conditions of the agreement and accepted those and signed. However there are numerous terms and conditions that common man does not read these conditions. The print of the condition/term is of so small size that it is difficult to read. Also the agents of the opposite party convince that the terms and conditions are formal one as per format of IRDA. Therefore merely signing of the documents, it can not be inferred that the signing person understood every term of agreement and accepted it.
6) The learned advocate Shri Shivdekar argued for the opposite party in the line of written statement. It is contended that the deceased suppressed material facts of disease. It is submitted that the complainant did not submit the necessary documents demanded by the opposite party which included Medical record for past 2 years,
Name of centre, treating hospital and treatment papers where LA was treated in last one year for the headache (2016-17) submission of new claim form. It is denied that opposite party received these documents any time from the complainant. The opposite party did not receive any report from Doctor Kurhade where deceased insured was treated. The learned advocate further argued that the terms and conditions of the contract are to be strictly construed to determine the liability of insurer. To support his contention, the learned counsel kept reliance on
i) Surajmal Ram Niwas Oil Mill (P) Ltd Vs. United India Insurance Co.Ltd. (2010) 10 SCC 567.
ii) Reliance Life Insurance Co.Ltd. Vs. Madhavacharya Rev.P. No. 211/2011 NCDRC
He further argued that the deficiency in service can not be alleged without attributing fault, imperfection, shortcoming or inadequacy in quality and nature of the performance which is required to be performed by a person involved in the contract. To support his contention, learned counsel relied on the judgement of Hon.SC in Ranveet singh Bagga Vs. KLM Royal Dutch Airline (2000) 1 SCC 66. He further argued that the contract is based on the principal of good faith (i.e. doctrine of Uberrimae fide) and is subject to terms and conditions. The proposer is under legal and solemn obligation to disclose all material facts correctly, honestly and truthfully to the Insurer while obtaining policy. He relied on judgement of Hon’ble National Commission in LIC of India & Anr. Vs. Smt.Krishna Devi (RP 430/2011) wherein it is held that, one can not fault LIC for having repudiated the insurance claim on the ground that the vital information has been withheld.
(7) Discussion :
-Admittedly, there is no dispute as to issuance of insurance policy to the deceased by opposite party. Admittedly the opposite party received claim proposal after the death of deceased. Admittedly on 2/2/2018 opposite party demanded documents including..
1. Leave record of past 2 years.
2. Mediclaim details for the past 2 years.
3. Name, centre, treating hospital and treatment papers where (Insured was treated for headache (20/6/2019) from complainant.
It is alleged by the complainant that inspite of submission of these documents the opponent on 14/9/2018 the opposite party again demanded the documents including..
1. Copy of medical report (Medical record submitted by the form & reimbursement.
2. All treatment records from treating doctor Dr.Deepak Kurhade.
3. Medical records related to treatment taken for headache (2016-17)
It is alleged by the complainant that they submitted all these documents to opposite party. Complainant contended that she submitted claim initially on 5/12/2017. There is customer acknowledgement copy on record at page 11 of complaint. Therefore, it cannot be denied that complainant submitted her claim along with documents.
The opposite party contended that they demanded certain papers on 2/2/2015 and 8/12/2017, and the complainant did not submit those till today. However, there is endorsement as to receipt of documents on 10/1/2018 by opposite party for the receipt of documents including life assured Bank statement for 2 years, employers certificate (in particular format) past medical records for diagnosis & treatment taken in his life time and income proof. The said endorsement is on letter of opposite party dated 8/12/2017, which is at page 14 of the complaint.
There is also receipt for the documents given by opposite party for the documents demanded vide letter 2/2/2018 the receipt is dated 24/2/2018 with the stamp of LIC Branch at Amaravati which is at page 15 of complaint. There is also receipt of claim form on 20/3/2018 by Opposite partyat Branch Office. During the course of arguments, the opposite party was asked to clarify on the receipt of documents. The officer of the Opposite party appeared before this Commission and admitted the signatures towards receipt of documents and submitted that Head office will be requested to verify the documents with them. Therefore there appears no force in the argument/submission of opposite party that the complainant has not submitted required documents.
The most pertinent question before us is whether there is suppression of existence of any disease/ailment by the deceased while obtaining the policy. From the proposal form on record, it reveals that deceased had replied Nil for the question as to existing disease or hospitalization during last 5 years. The opposite party in their written statement had specifically contended that after receipt of documents, there reveals fact that deceased was having the medical problem out of CVT or CVST (Cerebral Venomous Sinus Thrombosis) and thereafter they demanded additional documents. It is also contended by opposite party that they had written letter to treating doctor Dr.Kurhade seeking medical documents. However, he has not supplied those.
It reveals that the employer certificate was submitted as to availment of leaves (medical/commutation). It reveals that the deceased availed commuted leave from 9/1/2015 to 18/1/2015 (9 days only) and availed earned leave for the period of 23/4/2015 to 22/5/2015, 3/6/2015 to 15/3/2015. The policy is purchased on 11/8/2017. Though the commutted leave of 9 days is availed by deceased in 2015, which is prior to 2 ½ years of purchase of policy, the opposite party have not established that this leave was availed for treatment of alleged CTV treatment and deceased suppressed this fact in proposal form. It reveals that opposite party demanded leave record for past 2 years, mediclaim details for past 2 years, name & centre of treating hospital and treatment papers where deceased was treated for headache vide their letter dated 3/7/2018. It reveals that the complainant submitted these documents immediately to opposite party on 6/7/2018. From all these documents there is whisper of disease/ailment of brain odema. Thereafter it was the liability of opposite party to establish that deceased suppressed the said disease while obtaining the policy.
During the course of arguments, the complainant adduced the letter/certificate of Dr.Kurhade dated 22/1/2018 stating that the deceased was firstly seen by them on 2/10/2017 in OPD for headache. Admittedly policy is obtained on 11/8/2017. Therefore, it can not be inferred that deceased was taking treatment or had approached to Dr.Kurhade prior or at the time of obtaining of the policy. The certificate stated that the patient was diagnosed for left hemmorhage infarct with mass effect & brain odema. The doctor also certified for past history of patient noting 2 episodes of intermittent headache over one year. However, it is specifically certified that the intermittent headache during last one year is not related to present diagnosis. It appears that the Dr.Kurhade was advised for surgery to deceased.
After perusal of the certificate, it reveal that during the treatment for headache the disease/ailment of brain odema is detected by Dr.Kurhade on 2/10/2017, which is after the obtaining of the policy by deceased. Though Dr.Kurhade noted past history of intermittent headache. However, certified that it is not related to present diagnosis ofbrain odema. There are no documents brought before us by opposite party to show that deceased was taking treatment for brain odema or CTV disease when he obtained the policy. It is submitted by the advocate on behalf of the Insurance Company that the present claim preferred by the complainant itself was premature.
Learned advocate for the Complainant has rebutted this contention. Secondly, it is contended by the learned advocate for the Insurance company that the complainant had not supplied the documents demanded by the Insurance company, but the record speaks otherwise as the same shows that the complainant had supplied relevant documents and the same were also received by the Opponent on on 16/1/2018, 24/2/2018 and 20/3/2018. If really no documents were received from the Respondent by the Insurance company, it was the bounden duty of the Insurance company to file an affidavit or other documents to support its contention but the same are not filed. On the other hand, learned advocate for the complainant has drawn out attention to the copies of documents which clearly show the endorsement regarding receipt of documents by the concerned authorities of the Opponent Insurance Company.
Therefore there reveals deficiency in service on the part of opposite party for not settling the complainant’s claim and also reveals unfair trade practice on their part towards complainant. In the circumstances, complaint deserves to be allowed.
The sum insured in the policy is Rs.50 lacs. The deceased died on 3/11/2017. Claim is firstly filed on 5/12/2017. Therefore, it will be appropriate and just to direct opposite party to pay Rs.50 lacs towards insurance claim with 9% interest from 10/1/2018. Complainant is claiming 18% interest. However, Hon’ble National Commission in Jyoti Chanana Vs. M/s S.S.Group Pvt.Ltd. in C.C.1610/2019 decided on 23/2/2023, where Hon’ble National Commission awarded 9% interest per annum on the principal amount to be refunded. Relying on this judgement, it will be appropriate to award 9% interest in present case. The complainant claimed 10% penal interest. However, it is not justified when we have separately dealt the issue of awarding compensation for agony. Complainant demanded Rs.50,000/- towards agony. In our opinion, complainant is justified in praying for awarding this amount towards agony. The complainant claimed 10 lac towards deficiency in service., unfair trade practice. However, when we have awarded for Rs.50,000/- towards agony, there requires no separate award for deficiency in service or unfair trade practice. The complainant prayed for suitable cost for cost of litigation. In our opinion, it will be just and proper to award Rs.10,000/- towards cost of litigation. In the circumstances we allow the complaint. In the circumstances we pass the following order..
ORDER
1) Consumer Complaint No.CC/19/3 is partly allowed.
2) The opposite parties 1 and 2 are directed to jointly & severally to pay Rs.50 lacs towards the insurance claim filed by the complainant with 9% interest p.a. from 10/1/2018 (i.e. receipt of demanded documents) till realization. The opposite parties are also directed to jointly & severally pay Rs.50,000/- towards mental and physical agony. Opposite parties 1 & 2 are also directed to jointly & severally pay Rs.10,000/- towards cost of litigation.
3) Opposite parties are directed to comply this order within 30 days of receipt of the order.
4) copy of the order be supplied to the parties free of cost.
