KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 196/12
JUDGMENT DATED: 18.02.2013
PRESENT:
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
Baby.C.S, W/o Mani,
Choorakode Puliyankad House, : APPELLANT
Cheraya, Kongad, Palakkad.
(By Adv: Sri.Saji.S.L)
Vs.
1. Mahindra & Mahindra Financial Services Ltd.,
R/by Managing Director,
Sahdana House, 2nd Floor,
Behind Mahindra Towers, 570 P.B. Marg,
Worli, Mumbai, PIN-400 018.
2. The Branch Manager,
Mahindra & Mahindra Financial Services Ltd.,
2nd Floor, T.M.V. Complex,
Chandra Nagar, Palakkad,
PIN – 678 007.
: RESPONDENTS
3. The Branch Manager,
Mahindra & Mahindra Financial Services Ltd.,
Cochin-682 037.
(R1 to R3 by Adv: Sri.C.S. Rajmohan)
4. Deputy Chief Manager, Claims Department,
Kotak Mahindra Old Mutual Life Insurance Ltd.,
9th floor, Godres Coliseum, Behind Everard Nagar,
Sian (E) Mumbai, PIN-400 022.
(By Adv: Sri. G.S. Kalkura)
JUDGMENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
The appellant was the complainant in CC.64/08 in the CDRF, Palakkad. The complainant alleged that she was a widow aged 50 years. Her husband Mani was working as a Commission agent for tractor owners and he used to arrange work for tractor owners. In the 2nd week of February 2007, executives from the 1st opposite party/company persuaded him to subscribe to a policy named as Mahindra Loan Suraksha. As per the said policy every loan taken from the 1st opposite party would be protected through Group Life Insurance Policy arrangement. Mahindra Finance would provide loan suraksha to their customers with the help of Kotak Mahindra old mutual Life Insurance Limited and the borrower would get life insurance cover. The main attraction of the said scheme was that in the event of death of an insured borrower during the tenure of the loan, the borrowers’ family would be relieved of the burden of paying the balance outstanding loan. The executives from the 1st opposite party persuaded Mani to purchase a tractor. The 2nd opposite party arranged finance from the company. On 27.2.2007 Mani made initial payment of Rs.17,900/- to the 1st opposite party. The vehicle was also hypothecated to them Rs.2999/- was charged as initial payment towards Mahindra Loan Suraksha Insurance Scheme. Mani was compelled to sign so many papers and agreement as part of the loan. On 28.2.2007, a 2007 model Mahindra 475 D1 tractor was delivered at the house of the complainant. The registration certificate book was hypothecated to the 1st opposite party Company’s branch at Kochi. Later the vehicle was registered as KL-9V-834. The loan amount was Rs.4,32,601/- , out of the said amount Rs.3 lakhs was the value of the vehicle and Rs.1,32,601/- was finance charges. The loan was repayable in 48 months at the rate of Rs.9075/- per month. Mahindra Loan Suraksha was for one year from 28.2.2007 to 27.2.2008. Mani made 2 payments of monthly instalments from his bank account. Thereafter he fell ill and died on 14.4.2007 due to jaundice. After the death of Mani the complainant approached the 2nd opposite party to avail the benefit of the scheme. She submitted application to the 2nd opposite party. But there was no reply. She was told that the 4th opposite party was to sanction the claim and it would take time. Believing the words of the 2nd opposite party, the complainant paid 6 monthly instalments amounting to Rs.54,450/-. When the complainant approached the 2nd opposite party on 20.4.2008 she was told that the 4th opposite party had rejected the claim. The opposite parties had committed clear deficiency of service by rejecting the claim of the complainant. Hence she approached the Forum to cancel the loan and for refund of Rs.54,450/- paid after the death of her husband. She further claimed compensation of Rs.1 lakh from the opposite parties.
2. The opposite parties filed joint version in which it was admitted that the complainant’s husband Mani had availed financial assistance as per an agreement. But opposite parties denied that, Mani was a commission agent for tractors or that he used to arrange works for tractor owners. The opposite parties also denied the allegation that their executives induced Mani to purchase the tractor. It is incorrect to say that the loan instalments were remitted regularly. There was no deficiency in service on the part of the opposite parties the claim was rejected for valid reasons. Hence they prayed for dismissal of the complaint.
3. The complainant filed chief affidavit before the Forum and marked Exts.A1 to A7. On behalf of the opposite parties one witness was examined as DW1 and Ext.B1 was marked. The Forum once allowed the complaint. There upon opposite parties 1 to 3 as well as the 4th opposite party filed appeals before this Commission. The appeals were allowed and the matter was remitted back to the Forum for recording further evidence. Thereafter Exts.B2 to B8 were marked on the side of the opposite parties. As per the impugned judgment the Forum dismissed the complaint holding that pre existing illness was not disclosed by the husband of the complainant and thus there was violation of policy conditions. The complainant has challenged the conclusion of the Forum in this appeal.
4. The only question that arises for consideration is:
Whether the appellant could succeed in establishing deficiency in service on the part of the opposite parties/respondents in this appeal?
5. Admittedly, Mani the husband of the complainant had availed financial assistance for purchasing a tractor as well as Mahindra Loan Suraksha Insurance Cover. The main attraction of this scheme was that if the borrower dies during the pendency of the loan his legal heirs need not discharge the balance loan liability. The husband of the complainant died on 14.4.2007 due to jaundice and thereafter she submitted claim before the opposite parties which was rejected as per Ext.B7. The grounds on which rejection was made are firstly as per clause 3 of the policy contract, the insurance cover provided was subject to the person being in good health and duly completing and submitting evidence of good health. Secondly though Mani had signed declaration of good health on February 28, 2007, the death summary received by the opposite parties from the Mother Hospital Limited stated that he was first seen in November 04 with cirrhosis of lever, that was before the date of commencement of risk and signing the declaration of good health. The death summary from the Mother Hospital further showed that Mani was admitted in the same hospital on 10.4.2007 with fever, abdominal distention and altered sensoria. He died on 14.4.2007 due to severe Hepato Renal Syndrome, complications following cirrhosis of liver, ethanolic hepatitis. As the material information, cirrhosis of liver was not disclosed by Mani at the time of signing declaration of good health the company was not able to compensate the risk that it was asked to undertake under the said proposal. Since there was no disclosure of material information they were repudiated the claim of the complainant.
6. The only question is whether the repudiating was justified. Ext.B3 is the declaration of good health made by the insured, Mr.Mani. He declared that he was of sound health and did not have any physical deformity or disability. He had not received nor did he expect to receive any treatment nor had been hospitalized nor did he expect to be hospitalized for the illnesses specified including liver failure. Ext.P6 is a certificate issued from the Sai Nursing Home which shows that Mani was admitted in that hospital from 2.4.07 to 10.4.2007 and he was referred to the Mother hospital for further treatment. Ext.B1 is the death summary relied on to reject the claim of the complainant. It is issued from the Mother Hospital based on the patent’s details kept in the Mother hospital. It shows that Mani died on 14.4.2007 and the cause of death was cirrhosis of liver, hepato renal syndrome. As to previous medication, treatment etc, it is mentioned that he had seen the doctor in 2004. He had chronic liver disease then. He was lost to follow up since nearly 2 years. The doctor concerned is examined as PW1. He deposed that he saw Mani first on 18.11.2004. Thereafter he came up for follow ups in early 2005. Thereafter he finally came in 2007. He was very ill at that time. The deceased was an alcoholic. In clause 4 of Ext.B1 questionnaire it is mentioned that he was suffering from chronic liver disease since 2004. The doctor also gave the opinion that in 2004 when he saw the deceased he was not very ill. The illness he had in 2007 was possibly the progression of the illness in 2004. Ethanolic hepatitis is related to abuse of alcohol. The doctor further gave the opinion that had the patient given up alcohol he would have carried on as he was in 2004. He admitted in cross-examination that the death summary would not reveal the date of first admission in 2004. The doctor further explained that generally a person with chronic liver disease would not go back to the original state of health.
7. It was relying on Ext.B1, the opposite parties rejected the claim of the complainant on the ground that breach of good faith was committed by the insured by not disclosing fully his state of health in Ext.B3. Now that document is supported by the evidence of DW1. It is true that the opposite parties have not produced the hospital records relating to the admission of deceased in 2004. But if as a matter of fact the appellant is disputing the correctness of the version of DW1, the complainant/appellant could also have taken steps to get those records produced. On the available evidence and circumstances, the Forum was perfectly justified in upholding the rejection of the claim by the opposite parties. No deficiency of service on the part of the opposite party is established in evidence.
In the result the appeal is dismissed but without costs.
K. CHANDRADAS NADAR : JUDICIAL MEMBER
VL.
