State Consumer Disputes Redressal Commission
Madan Kashyap vs Icici Lombard Gic Ltd. on 30 April, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 30.04.2013 Case No. C-112/11 1. SHRI MADAN KASHYAP - COMPLAINANT S/o Shri Desh Raj Kashyap 2. Shri Praveen Kumar Kashyap S/o Shri Madan Kashyap 3. Sh. Rachit Kumar Kashyap S/o Shri Madan Kashyap 4. Baby Shonali Kumari Kashyap D/o Shri Madan Kashyap Through her father natural guardian and natural friend namely, Sh.Madan Kashyap All R/o C-2/173, Second Floor Janak Puri, Near Kendriya Vidyalaya, New Delhi. Versus ICICI LOMBARD GIC LTD. - OPPOSITE PARTY Regd. Office ICICI Bank Towers Bandra Kurla Complex, Mumbai 400 051. Corporate Office Zenith House, Keshavrao Khadya Marg Mahalaxmi, Mumbai 600 034. Delhi Address ICICI Lombard GIC Ltd. 3rd Floor, Narain Manzil, Bara Khamba Road, Connaught Place, New Delhi-110001. CORAM : S.A. SIDDIQUI - Presiding Member S.C. JAIN - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. This complaint has been filed for award of Rs. 30 Lacs along with interest @ 12% p.a. and the cost of litigation.
2. Complainant No. 1, Sh. Madan Kashyap is the husband/nominee of the deceased Mrs. Neelam Kashyap whereas complainant 2 to 4 are the sons and daughters (Legal heirs) of the deceased. It has been stated in Para 2 of the complaint that late Mrs. Neelam Kashyap obtained a Claim Policy No. 4065/ICICU-HSP/1923591/00/000 in respect of Home Loan. Policy was worth Rs. 24 Lacs and was valid for the period 29.10.09 to 28.10.2014. Premium of Rs. 1,47,000/- was paid by Mrs. Neelam Kashyap. Unfortunately, Mrs. Neelam Kashnyap developed serious illness and had to be hospitalized on 20.3.2010 in Apollo Hospital, New Delhi, where she ultimately died on 2.4.2010. The cause of death of Mrs. Neelam Kashyap as recorded by the Hospital was Sepsis multi-organ failure ARDS Retro Viral disease with AIDS defining manifestations as a result of complication of HIV/AIDS. The OP Insurance Company was informed and a claim No.SMC/000005665 was lodged. The claim was repudiated by the OP vide reference No. SMC/0000005665 dated 7.9.2010 on the ground that the claim is not admissible as ailment suffered by the insured was Retro Viral disease (HIV+ve) with opportunistic infection and the cause of death of the insured was Sepsis multi-organ failure with ARDS with Retro Viral disease with AIDS defining manifestations as was evident from the death summary dated 2.4.2010.
3. It has been stated that no such policy or general exclusion were provided to the complainant or the disease at the time of purchase of the policy and payment of the premium. It is further stated that the disease of the complainants wife is duly covered and falls under the category described under major medical illness and procedure. Thus claim was admissible and it has been unlawfully repudiated. After obtaining the repudiation letter dated 7.9.2010, complainant requested the OP to furnish clarification but the same was not provided. Complainant then sent a legal notice dated 5.11.2010 through his counsel Sh. S.C. Singhal.
After lot of persuasion, the OP supplied the said Clause 3 of General Exclusion applicable to the Policy, which was never supplied earlier to the complainant. The aforesaid General Exclusion was not the part of the policy at the time of accepting the premium so it is not binding on the complainant.
Non-payment of claim is deficiency of service on the part of the OP. The complainant is, therefore, entitled for the entire assured sum of Rs. 24 Lacs along with compensation of Rs. 6 Lacs for mental pain and agony. Having been left with no option, the complainant preferred this complaint for award of Rs. 30 Lacs.
4. The complainant filed documents such as copy of Insurance Policy, copy of letters dated 1.9.10 and 7.9.10, copy of e-mails dated 29.10.10 and 1.11.10, copy of notices dated 5.11.10 and 21.11.10, Death Certificate of Smt. Neelam Kashyap and copy of order dated 1.3.2011 along with complaint.
5. ICICI Lombard General Insurance Co. Ltd., OP, filed written statement. It was admitted that Smt. Neelam Kashyap secured a Home Safe Plus Secure Mind Policy bearing No. 4065/ICICI-HSP/1923591/00/000 for a sum of Rs. 24 Lacs valid from 29.10.2009 to 28.10.2014. The policy was subject to the terms and conditions contained therein and as set out in the schedule with all its parts. The complete policy along with all parts of the schedule was duly provided to the insured. It was further admitted that the insured was admitted in Apollo Hospital, New Delhi on 20.3.2010 and expired on 2.4.2010 due to Sepsis with multiple organ failure with ARDS with Retro Viral Disease with AIDS defining manifestations. The claim was lodged by her husband, Complainant-1. On processing the claim, it was found that the deceased/insured suffered from Retro Viral Disease (HIV+ve) with Opportunistic Infection and the cause of death of the insured was Sepsis multi-organ failure with ARDS with Retro Viral disease with AIDS defining manifestations as was evident from the death summary dated 2.4.2010 of Apollo Hospital. It was maintained that ailment of the deceased referred in her death summary falls under General Exclusions applicable to the Policy, Clause No. 7, Any sexually transmitted disease, Acquired Immune Deficiency Syndrome (AIDS), AIDs related complex Syndrome (ARCS) and all diseases caused by and/or related to HIV. Since the claim fell under the General Exclusion Clause of the Policy, it was rightly repudiated vide letter dated 7.9.2010.
6. It was wrong assertion by the complainant that the terms and conditions of the policy were not provided to the insured at the time of taking the policy and payment of the premium. Therefore, no cause of action was available to the complainant and the complaint is liable to be dismissed. It was also denied that disease of the deceased fell under the category of Major Medical Illness and Procedure, as alleged. The claim was never admissible. The disease of Mrs. Neelam Kashyap/insured was not covered under Major Medical Illness and Procedure. It was also denied that General Exclusion was not the part of the policy at the time of accepting the premium and does not bind the complainant as alleged. It was further denied that non-payment of the claim was deficiency on the party of the OP.
No deficiency of service was committed on the part of the OP by repudiating the claim of the complainant as the Insurance Company was within its rights to have dismissed the claim as it fell under the Exclusion Clause.
7. The complainant filed rejoinder in which it was emphasized that the OP cannot take shelter under the Clause 7 of the Exclusion Clause as the same was never provided to the complainant nor policy was ever explained to him. What was provided to the insured did not contain any such excluding clause.
The Policy does not contain any Exclusion Clause 7 as mentioned rather Clause 7 of Part-1 of the Schedule contains details of the insured have been along with benefits and there is no exclusion clause. The repudiation of the claim through letter dated 7.9.2010 is therefore wholly unjustified and illegal, which amounts to deficiency of service.
8. Both the sides led evidence in support of their case.
9. We have heard Ld. Counsels for the Parties and perused the re3cord. We have also gone through Honble Supreme Court of India ruling filed by the OP in Civil Appeal No. 1557 of 2004 with Civil Appeals decided on 17.1.2013 in Export Credit Guarantee.
10. Certain facts are admitted. Securing Policy No. 4065/ICICI-HSP/1923591/00/000 for a sum of Rs. 24 Lac valid from 29.10.2009 to 28.10.2014 has not been disputed. The main contention of the complainant was that no such policy/documents containing exclusion clause were provided to the complainant or the deceased at the time of taking the policy nor such conditions were ever explained by the OP to the deceased or the complainant. Documents were later on doctored by the OPs. No such documents were either given at the time of taking the policy or depositing the premium. The disease of Mrs. Neelam Kashyap was duly covered under the category of Major Medical Illness and Procedure, therefore, the claim was fully admissible and it was illegally repudiated. On the other hand, OP argued that a complete policy along with all parts of schedule was duly provided to the insured. The terms and conditions of the policy were also explained.
11. The contract of insurance is based on the principle of Uberrima Fides i.e. utmost good faith. Both the parties are bound by the terms and conditions of the insurance policy. It is well-settled legal preposition that while construing the terms and conditions of the insurance, the words used therein must be given paramount importance as was held by Honble Supreme Court in Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International.
12. Copy of the repudiation letter dated 7.9.2010 is available on record at page 16.
It has been mentioned in this letter-
On processing of claim, the ailment suffered by insured was Retro Viral Disease (HIV+ve) with opportunistic infection and the cause of death of the insured was Sepsis with multi organ failure with ARDS with Retro Viral disease with AIDS defining manifestations as evidence from the death summary dated 2.4.2010 from Indraprastha Apollo Hospital as a result of complications of the HIV/AIDS.
In view of the above, the ailment reported falls under 3. GENERAL EXCLUSIONS APPLICABLE TO THE POLICY, clause no. 7 Any sexually transmitted diseases. Acquired Immune Deficiency Syndrome (AIDS), AIDS Related Complex Syndrome (ARCS) and all diseases caused by and/or related to the HIV.
13. Now, we revert to Exhibit R-I True copy of the Insurance Policy along with terms and conditions. At Page 22, it is provided
3. GENERAL EXLCUSIONS APPLICABLE TO THE POLICY:
The Company shall not be liable for any loss or damage under this Policy:
1. Arising or resulting from the Insured committing any breach of law with criminal intent.
2. Due to, or arising out of, or directly or indirectly connected with or traceable to, war invasion, act of foreign enemy, hostilities (whether war be declared or not) civil war, rebellion, revolution, insurrection, mutiny, military or usurped power, seizure, capture, arrests, restraints and detainment of all Heads of State and citizens of whatever nation and of all kinds and acts of terrorism.
3. Directly or indirectly caused by or contributed to by or arising from ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel. For the purpose of this exclusion, combustion shall include any self-sustaining process of nuclear fission.
4. Directly or indirectly caused by or contributed to by or arising from nuclear weapon materials.
5. Directly or indirectly caused by or contributed to by or arising out of usage, consumption or abuse of alcohol and/or drugs.
6. Arising out of or as a result of any act of self-destruction or self inflicted injury, attempted suicide or suicide.
7. Any sexually transmitted diseases, Acquired Immune Deficiency Syndrome (AIDS), AIDS Related Complex Syndrome (ARCS) and all diseases caused by and/or related to the HIV.
14. Copy of death certificate is available at page 23. It has been mentioned in the column of cause of death, Sepsis with multi organ failure with ARDS with Retro Viral disease with AIDS defining manifestations.
15. Now the question arises whether the present case falls within 3. General Exclusions Applicable to the Policy, wherein under Clause 7 it has been provided that the Company shall not be liable for any loss or damage under the Policy if the cause of death arises from any sexually transmitted diseases, Acquired Immune Deficiency Syndrome (AIDS), AIDS Related Complex Syndrome (ARCS and all diseases caused by and/or related to the HIV. We, therefore, without any hesitation come to the conclusion that the cause of death of Smt. Neelam Kashyap clearly fell within the Exclusion Clause (7) of 3. General Exclusion Applicable to the Policy. We reject the contention of the complainant that the case of the complainants wife was covered under the category of Major Medical Illness and Procedure. A Policy of Life Insurance is based on the Principle of Utmost good faith (Uberrima Fides) and it is binding on both the sides. The terms and conditions of such policy are strictly construed as has been emphasised by the Apex Court from time to time. The contention of the complainant that no such policy conditions or documents were provided to the complainant or deceased at the time of taking of policy or payment of the premium is therefore untenable. The Honble Supreme Court in the case Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International held:
It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties (Vide Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. MANU/SC/0814/2010 (2010) 10 SCC 567).
16. In view of the above discussion and legal position, we come to the conclusion that by rejecting the claim of the complainant, OP did not commit any deficiency of service. The claim was rejected within the scope of the terms and conditions of the insurance policy.
ORDER The complaint is found incompetent and is, therefore, dismissed. The cost is made easy.
17. A copy of this judgement and order as per the statutory requirements be provided to the parties free of cost and thereafter the file be consigned to Record Room.
( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn