State Consumer Disputes Redressal Commission
Neema Saini vs Icici Lombard Gic Ltd. & Ors on 17 September, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 07.09.2021
JUDGMENT PRONOUNCED ON: 17.09.2021
COMPLAINT NO. 512/2016
IN THE MATTER OF
MS. NEEMA SAINI .... COMPLAINANT
VERSUS
ICICI LOMBARD GENERAL
INSURANCE CO. LTD. & ANR. ...OPPOSITE PARTIES
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. Nikhlesh Jain, Authorised Representative of the Complainant.
Mr. Anuj Chauhan, Counsel for the Opposite Party.
PER: SH. ANIL SRIVASTAVA (MEMBER)
JUDGMENT
[Court hearing convened via video conferencing on account of COVID-19]
1. The present complaint was initially disposed off by this Commission on 24.06.2020, stating in para 24 as under:
"After analyzing the legal position . Besides cost of Rs. 25,000/ is awarded in favour of the complainant and against the OP-1 for causing harassment to her. Ordered accordingly."
2. However, later an appeal was filed assailing the aforesaid order, wherein the Hon'ble NCDRC order has held as under:
"Consequently, we set aside the order dated 26.06.2020 passed by the State Commission in Complaint No.512/2016 and restore the Complaint to its original number before the State Commission. We request the State Commission to decide the Complaint expeditiously in accordance with law preferably, if possible, within three months from today."CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 1 of 9
3. Accordingly, the present complaint was heard again and it was noted that the present complaint has been filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 before this Commission, asseverating Deficiency of Service and Unfair Trade Practices by the Opposite Parties, wherein it has been prayed as under:
a) To pay Rs. 75,00,000/- to the complainant alongwith interest 18% per annum from the date of death of Sh. Dharamvir Saini i.e. 25.10.15 to till realisation;
b) To pay Rs. 20 lakhs as compensation against the mental agony pain suffered by the complainant;
c) To award litigation cost of Rs. 1,00,000/- to the complainant.
d) To pass any other order which this commission may deem fit.
4. Brief facts necessary for the adjudication of the present complaint are that the Sh. Dharamvir Saini took loan of Rs. 75,00,000/- from Opposite Party no. 2 and to secure the said loan amount, Opposite Party No. 2 insisted the husband of the Complainant to take Insurance Policy. The Opposite Party No. 2 informed the Complainant's Husband that they have a tie up with Opposite Party No. 1 and they will purchase the relevant insurance policy for him. Thereafter, Opposite Party No. 2 purchased the insurance policy commencing from 15.10.2013 to 14.10.2018 and assured the Complainant's Husband that in case of any mishappening, Opposite Party No. 1 would be liable to pay the said loan amount. No document with respect to Insurance Policy in question was given to Sh. Dharamvir Saini by the Opposite Parties and therefore, the Complainant's husband was allegedly unaware about the terms and conditions of the said policy.
5. The Complainant's husband was admitted to hospital on 20.10.2015 and expired on 25.10.2015 due to septic shock with MODS. The said fact was intimated to the Opposite Parties and all the necessary documents were delivered to them for early disbursement of the claim amount. However, the Opposite Party No. 1 repudiated the claim vide letter dated 07.03.2016 on the ground that the claim does not fall within the terms and conditions of the said policy. The Complainant informed about the repudiation to the Opposite Party no. 2 but it was of no avail.
6. Alleging Deficiency in Service and Unfair Trade Practice by the Opposite Parties, the Complainant has approached this commission.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 2 of 97. The Opposite Party No. 1 has contested the present case and has raised some preliminary objections as to the maintainability of the complaint case. The counsel on behalf of the Opposite Party No. 1 submitted that the present complaint is filed without any cause of action. He further submitted that the Complainant's husband was suffering from pre-existing disease (diabetes) since last 4-5 years and the said fact was concealed at the time of taking policy by the Complainant's husband.
8. The Counsel for the Opposite Party No. 1 submitted that said policy along with booklet containing terms and conditions was duly served to the Complainant's husband vide letter dated 16.10.2013. He further submitted that the claim was rightly repudiated by the Opposite Party No. 1 as the Complainant's husband did not disclose the past medical history at the time of taking policy. Pressing the aforesaid objections, the Counsel appearing on behalf of the Opposite Party No. 1 prayed that the Complaint should be dismissed. In support of his contentions, he placed reliance upon the dicta of the Hon'ble National Commission in FA- 1450/2014 titled Kamlesh Gupta vs. ICICI Lombard General Insurance Company & Ors. dated 18.02.2016.
9. The Opposite party no. 2 was also noticed and filed their Written Statement. However, during the course of proceedings, the Complainant paid the entire Loan Amount to the Opposite Party No.2. On 12.08.2021, the parties submitted that since the entire amount has been paid, there remains no cause of action against Opposite Party No. 2, hence, the same may be deleted from the Array of Parties. Order dated 12.08.2021 has been reproduced for ready reference:
"IA-39/21 IN C-512/16 An application bearing IA-39/21 already stands disposed of vide order dated 13.01.2021.
Mr. Alok Sharma along with AR ICICI Bank Mr. Zarar Rizvi submits that the entire money has been received by the bank as per settlement and therefore OP-2 be deleted from the array of party."
10. Hence, the order is crystal clear that the Opposite Party No.2 has in fact become a pro-forma party after the settlement of accounts by the Complainant with it.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 3 of 911. The Complainant filed Rejoinder rebutting the written statement filed by the Opposite Parties. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record along with the Written Arguments.
12. We have perused the material available on record and heard the arguments of both the parties.
13. From the discussion in para 7 of this judgment, it is clear that the liability, if any, is to be confined to the Opposite Party No.1.
14. The question for consideration before us is whether the Complainant has any Cause of Action to file the present complaint against the Opposite Party No. 1. It is not in dispute that the said insurance policy was purchased from the Opposite Party No. 1 by the Complainant's husband in the year 2013. It is further not disputed that the claim of the Complainant was rejected vide letter dated 07.03.2016 by the Opposite Party No. 1. It is clear from the copy of the Insurance Policy filed by the Opposite Party No. 1 that the present Complainant is the nominee of the insured i.e. Mr. Dharamvir Saini. Therefore, the Cause of Action arose in favour of the Complainant when the claim was repudiated by the Opposite Party no. 1 vide letter dated 07.03.2016. Consequently, the contention of the Opposite Party No. 1 that the Complainant has no Cause of Action against them is answered in the negative.
15. The next issue before us is whether the Opposite Party No. 1 supplied the copy of the said policy to the insured in order to make him aware of the terms and conditions of the said policy. It was submitted by the Opposite Party No. 1 that the said policy along with the terms and conditions was supplied to the insured on 16.10.2013. In support of his contention, the Counsel for the Opposite Party No.1 has relied on the dicta of the Hon'ble National Commission in Kamlesh Gupta (supra).
16. On perusal of the record before us, we find that the Opposite Party No. 1 has only filed the copy of the letter dated 16.10.2013 and has failed to find any document which shows the delivery of the copy of said policy along with terms and conditions to the insured. Hence, we cannot rely solely on the photo copy of the letter and the statement of the Opposite Party No.1, in the absence of proof of delivery.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 4 of 917. We deem it appropriate to refer to the case of Bharat Watch Company through its partners vs. National Insurance Company Ltd. reported at 2019 (6) SCC 212, wherein the Hon'ble Apex Court has held as under:
"We find from the judgment of the District Forum that it was the specific contention of the appellant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. The fact that there was a contract of insurance is not in dispute and has never been in dispute. The only issue is whether the exclusionary conditions were communicated to the appellant. The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. When the case travelled to the SCDRC, there was a finding of fact again that the conditions of exclusion were not supplied to the complainant.
Having held this, the SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of the SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai (supra). However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. The NCDRC missed the concurrent findings of both the District Forum and the SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for the NCDRC to render a decision on the effect of such an exclusion.
In the circumstances, the NCDRC was in error in reversing the decisions of the District Forum and the SCDRC which were grounded on a pure finding of fact that the terms of exclusion were not made known to the insured."
18. On perusal of the above settled law, it is clear that unless the insured is duly informed about the terms and conditions of the policy, the exclusionary clauses of the policy cannot be made applicable upon him. Returning to the facts of the present case, it is clear that the Complainant's husband (Insured) was not supplied with the copy of the said policy by the Opposite Party no. 1 as there is no document filed by the Opposite Party No. 1 to prove the delivery of the letter dated 16.10.2013. Therefore, the exclusionary clauses of the said policy is not applicable in the present complaint and the Opposite Party no. 1 was wrong in repudiating the claim of the Complainant on this ground, vide letter dated 07.03.2016.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 5 of 919. The next question for consideration before us is whether the insured i.e. Complainant's husband deliberately concealed the material fact of pre- existing disease i.e. diabetes, tuberculosis etc. at the time of obtaining the said policy.
20. We deem it appropriate to refer to the dicta of the Hon'ble National Commission in Life Insurance Corporation of India Vs. Sunita & Others reported at 2020 SCC OnLine NCDRC 710, wherein it has been held as under:
"7. We have heard the learned counsel of both the parties and perused the material on record.
8. As per the death summary, the death was due to a sudden cardiac arrest and inspite of best resuscitative measures, the patient could not be revived. We note both the fora have arrived at concurrent findings and allowed the complainant.
9. In the present case, the deceased assured was suffering from diabetes mellitus and chronic liver disease when bought to the hospital. But, the death was due to cardiac arrest. In our view the cause of death is nowhere connected to his pre-existing disease. Our view dovetails from the decision of Hon'ble Supreme Court in the Civil Appeal No. 8245 of 2015 titled Sulbha Prakash Motegaoneker v. Life Insurance Corporation of India, decided on 05.10.2015, wherein it was observed that suppression of information regarding any pre-existing disease, if it has not resulted in death or has no connection to cause of death, would not disentitle the claimant for the claim.
10. We find the Orders of the District Forum and the State Commission to be well appraised and well-reasoned. The State Commission concurred with the findings of the District Forum. We note in particular the extracts of the respective observations made by the two fora, quoted in paras 4 and 5 above. Within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the two for a below, as may necessitate re- appreciation of the evidence in revision. We find the award made by the District Forum (quoted in para 4 above), and as affirmed by the State Commission, to be just and appropriate. We find no jurisdictional error, or a legal principle ignored, or miscarriage of justice, as may necessitate interference in the exercise of the revisional jurisdiction of this Commission.
11. The revision petition, being misconceived and devoid of merit, is dismissed. "
21. From the aforesaid dicta of the Hon'ble National Commission, it flows that only the existence of a pre-existing disease is not sufficient to repudiate the claim and the death of the Insured should actually occur due to the pre-existing disease.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 6 of 922. We further deem it appropriate to refer to Revision Petition No. 4461 of 2012 titled Neelam Chopra Vs. Life Insurance Corporation of India & Ors. dated 08.10.2018, wherein the Hon'ble NCDRC has held as under:
"So far as the life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi has taken the following view in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No.656 of 2007, decided on 17.09.2007 :
"Insurance- Mediclaim-Reimbursement- Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance- Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension-Petitioner was advised to undergo ECG, which he did- Insurer accepted proposal and issued cover note- It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors- That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension- It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless- Policy would be reduced to a contract with no content, in event of happening of contingency- Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability- Main purpose rule would have to be pressed into service- Insurer renewed policy after petitioner underwent CABG procedure- Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable- As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency- Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."
11. From the above, it is clear that the insurance claim cannot be denied on the ground of these life style diseases that are so common. "
23. The aforesaid dicta makes it amply clear that the repudiation of the claim cannot be made on the ground that the existence of common life style disease including diabetes.
24. From the aforesaid two pronouncements of the Hon'ble National Commission, it is abundantly clear that firstly, the Insurance Company cannot repudiate the claim if the death of the deceased is not caused due to the pre-existing disease, secondly, we do not find any document which shows us that the insured was suffering from diabetes at the time of obtaining of the said policy and the cause of death of the insured was CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 7 of 9 'Septic Shock with MODS' and not diabetes or tuberculosis and even if it was to be presumed that there existed a pre-existing disease like diabetes, which is a common life style disease, the repudiation cannot be on that basis also. In toto, there is no justification provided by the Opposite Party No.1, which is in consonance with the well-established law, to repudiate the claim of the Complainant.
25. Hence, we find that the Opposite Party No. 1 is deficient in providing its services to the Complainant and the repudiation of the claim vide letter dated 07.03.2016 was not in consonance with the law settled by the Hon'ble Apex Court and Hon'ble National Commission.
26. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party No. 1 to pay Rs. 75,00,000/- along with interest as per the following arrangement:
A. An interest @ 6 % calculated from the date on which the claim was repudiated by the Opposite Party No. 1 i.e. 07.03.2016 till 17.09.2021 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party No. 1 pays the entire amount on or before 16.11.2021;
C. Being guided by the principles as discussed above, in case the Opposite Party No. 1 fails to pay the amount as per the aforesaid clause (A) on or before 16.11.2021, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which the claim was repudiated by the Opposite Party No. 1 till the actual realization of the amount.
27. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party No. 1 is directed to pay a sum of A. Rs. 3,00,000/- as cost for mental agony and harassment to the complainant; and D. The litigation cost to the extent of Rs. 50,000/-.
28. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 8 of 929. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
30. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
17.09.2021 CC 512/2016 NEEMA SAINI VS. ICICI LOMBARD GENERAL INSURANCE CO. LTD. Page 9 of 9