State Consumer Disputes Redressal Commission
Baljit Kaur vs Aditya Birla Health Insurance Co. Ltd. on 1 February, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No. 862 of 2019
Date of Institution : 02.12.2019
Date of Reserve : 17.01.2022
Date of Decision : 01.02.2022
Baljit Kaur, aged about 37 years, wife of Gursahib Singh, resident
of village Warian New, Waryah, District Tarn Taran (Punjab).
.....Complainant
Versus
1. Aditya Birla Health Insurance Co. Ltd., 10th Floor, R-Tech
Park, Nirlon Compound, Next to HUB Mail, Off Western
Express Highway, Goregaon East, Mumbai, through its
General Manager/Authorized Person.
Email. ID: [email protected].
2. Aditya Birla Health Insurance Co. Ltd., SCO 2473-2474, First
Floor, Sector 22C, Chandigarh, 160022 through its Senior
Divisional Manager/Manager/Authorized Person.
3. HDFC Bank House, 1st Floor, C.S.No.6/242, Senapati Bapat
Marg, Lower Parel, Mumbai-400013, through its General
Manager/Authorized Person.
....Opposite Parties
Consumer Complaint under Section 17
of the Consumer Protection Act, 1986 as
amended upto date.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member Present:-
For the complainant : Sh. Mohit Sadana, Advocate For Opposite party No.1 & 2 : Sh. Nitin Thatai, Advocate For Opposite Party No.3 : Ex-parte KIRAN SIBAL, MEMBER:-
The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short "the Act"), Consumer Complaint No.862 of 2019 2 against the opposite parties (in short "OPs") seeking following directions:-
i) The OPs be directed to release the amount insurance claim of Rs.25 lacs on account of death of her husband, along with interest @ 18% p.a. till the date of payment;
ii) The OPs be further directed to pay compensation to the tune of Rs.50,000/- on account of harassment;
iii) To pay Rs.11000/- as litigation expenses.
2. Brief facts, as set out in the complaint, are that the husband of the complainant; namely, Gursahib Singh (DLA) had purchased a 'Personal Accident Cover Policy' i.e. 'Activ Secure' bearing No.12-18-0039430-00 for a sum assured of Rs.25 lacs from OP No.1. The policy was valid w.e.f 05.09.2018 till 04.09.2020. The DLA purchased the said policy of OP No.1 through OP No.3 by paying an amount of Rs.6,684/- as single premium( Rs.3,240/- as Basic Premium, Rs.2,884/- as premium for Optional Covers and Rs.1,019/- as IGST) through Net Banking. Unfortunately, on 18.09.2018, the DLA died on the spot due to an accident with a Truck and an FIR No.0125 dated 18.09.2018 was registered under Section 304-A, 279, 427 of IPC in P.S. Sirhali, District Tarn Taran. The complainant intimated the OP No.1 & 2 through claim information No.12-18-0039430/612180000205 for receiving the claim amount on account of death of her husband. But the Insurance Company repudiated the claim of the complainant on the ground that the DLA had a previous history of hospitalization from 02.12.2017 to 21.12.2017 for Retroperitoneal Tumor and the same was not disclosed to the insurance company Consumer Complaint No.862 of 2019 3 at the time of inception of the policy. The DLA had purchased a 'Personal Accident Cover Policy' under the product name "Activ Secure" and the page No.7 of the insurance policy provides description of the product name 'Activ Secure' and further provides the facilities covered by this product name wherein under Section IA clause 1.1: 'Accidental Death Cover (AD): Lump Sum payment in the event of Accidental Death' has been mentioned. It is apparent from the description of the product name that the claim of the complainant is duly covered by the insurance policy and the alleged misrepresentation/non-disclosure has no nexus with the cause of death of the DLA. The complainant has made various efforts to get release the claim amount but all in vain. The act and conduct of the OPs amounts to unfair trade practice and deficiency in service on their part. Hence, this complaint.
3. Notice of the complaint was issued to the OPs and OPs No.1 & 2 were appeared through counsel. But OP No.3 refused to accept the notice and he was proceeded against exparte, vide order dated 04.03.2020.
4. OPs No.1 & 2 filed written reply raising preliminary objections that the present complaint is false, frivolous, vexatious and abuse of the process of this Commission since no cause of action arises against answering OPs. This commission has no jurisdiction to entertain the present complaint and the present complaint is not maintainable as the complainant has not approached this Commission with clean hands. On merits, OPs No. 1 & 2 stated that the DLA approached the OPs for availing Consumer Complaint No.862 of 2019 4 insurance policy and upon receipt of duly signed proposal form, the policy in question was issued on 05.09.2018. In case the policyholder is not satisfied with the features or the terms and conditions of the policy, he could withdraw/return the policy within 15 days of the receipt of the policy documents i.e. under the "Free Look" option. The Provision of free look is also explicitly stated in policy terms and conditions and a copy of the policy documents along with the signed copy of the proposal form was duly sent to the insured. The DLA had an opportunity to read the contents filled by him in the proposal form and intimate the company if he had missed to state about his past medical condition. The DLA during free look period did not approach the OPs for any change to be done about the facts mentioned in the proposal form, thereby implying that he had agreed to all the terms and conditions of the policy. After receipt of the claim intimation, the answering OPs did the investigation on its part and found that at the time of signing the proposal form, the policyholder concealed his past medical history. The policyholder was diagnosed with tumor in the year 2017 and he was hospitalized from 02.12.2017 to 21.12.2017 for Retroperitoneal Tumor. The history of this illness was not disclosed at the time of inception of the policy. Since the DLA was suffering from tumor in 2017, it means that the DLA was suffering from the said illness prior to the issuance of the policy on 05.09.2018. Therefore, the complainant is not entitled to the benefit of the policy. The insurance being a contract between the policyholder and the company both are governed by the terms and Consumer Complaint No.862 of 2019 5 conditions mentioned in the Policy Document and in the light of the said terms and conditions of the policy, the claim of the complainant was repudiated and the complainant was informed about the decision of the company, vide repudiation letter dated 31.12.2018. There is no deficiency in service on the part of OPs No.1 & 2. While denying the other averments made in the complaint, OPs No.1 & 2 prayed for dismissal of the complaint.
5. To prove her claim, the complainant, along with the complaint filed her own affidavit along with copies of documents Ex. C-1 to C-6. On the other hand, OPs No.1 & 2 filed on record affidavit of Vikram Jain, AVP-Legal and Compliance along with copies of documents Ex. OP-1/A to OP-5.
6. We have heard learned counsel for the complainant and OPs No.1 & 2 and have carefully gone through written submissions filed by the parties as well as record of the case.
7. The sum and substance of oral and written arguments submitted on behalf of the complainant is that the death of the DLA occurred due to accident only and the same has no nexus with the answers given by him while filling up the proposal form. The insurance policy mentions that if the insured suffers injury solely and directly due to accident during policy period and death occurs within 365 days from the date of accident, the claim is payable. Hence, the accidental death of the DLA is duly covered under the terms and conditions of the insurance policy. The alleged problem of Retinoperitoneal Tumor had no link with the accident. Moreover, certified issued by Jeevanjot Hospital, Amritsar itself provides that Consumer Complaint No.862 of 2019 6 the DLA was discharged in satisfactory state of health on 21.12.2017. Even there is no evidence that on the date of death, the DLA was suffering from said problem and was taking treatment for the same. The repudiation of the claim by the OPs is illegal and wrong and the same is liable to be set aside. In support of his contentions, learned counsel relied upon following cases:
i) Canara Bank v. M/s United India Insurance Co. Ltd. 2020 (1) CPJ 99 (SC);
ii) Arminder Kaur v. LIC 2016 (3) CPJ 242 (NC);
iii) Ratna v. LIC of India 2019 (4) CPR 790 (NC);
iv) Arun Kumar v. New India Assurance Co. Ltd. 2016 (4) CPR 33 (NC);
v) Surinder Kaur & Ors. v. LIC of India 2005 (2) CPJ 32(NC);
and
vi) National India Assurance Co. Ltd. v. Rakesh Kumar 2014 (3) CPJ 340 (NC).
8. The sum and substance of oral and written argument submitted on behalf of the OPs No.1 & 2 is that the complainant has not come to this Commission with clean hands. The DLA had concealed his past medical history while filling up the proposal form. The DLA was diagnosed with tumor in the year 2017 and he was hospitalized from 02.12.2017 to 21.12.2017 for Retroperitoneal Tumor. The DLA was suffering from the said illness prior to the issuance of the policy on 05.09.2018. As per IRDA Regulations, 2017, the policy holders are under a bounden obligation to disclose all the material information at the time of taking the policy. The said concealment amounts to fraud and the complainant cannot take benefit of such wrongs. The terms and Consumer Complaint No.862 of 2019 7 conditions of the policy were duly supplied to the DLA and he read and understood the same. He never applied for cancellation of the insurance policy within the "Free Look Period" of 15 days and hence it means that all the terms and conditions were applicable. The claim of the complainant has been rightly and legally repudiated and the complaint merits dismissal. In support of his contentions, learned counsel relied upon following cases:
i) Ravneet Singh Bagga v. MLM Royal Dutch Airlines 2000 (1) SCC 66;
ii) LIC of India v. Smt. G.M. Channabasamma (1991) (1) SCC 357;
iii) Satwant Kaur Sandhu v. New India Assurance Co. Ltd.
(2009) (9) Scale 488;
iv) R.P. No.3864 of 2017 (Allaudin @ Ajajuddin v. Kotak Mahindra Old Life Insurance Ltd.) decided on 05.01.2018 (NC);
v) RP No.4323 of 2012 (Devamma v. LIC) decided on 30.01.2014 (NC);
vi) P.C. Chacko & Anr. v. Chairman, LIC of India & Ors. 2008 CPJ 78 (SC);
vii) LIC of India v. Manish Gupta Civil Appeal No.3944 of 2019 (in SLP (C) No.5001/2019) decided on 15.04.2019;
viii) TATA AIG Life Insurance Co. Ltd. v. Orissa State Co-op.
Bank & Anr. (2012) CPJ 310 (NC);
ix) Export Credit Guarantee Corporation of India v. Garg Sons International (2003) 1 SCALE 410; and Consumer Complaint No.862 of 2019 8
x) General Assurance Society Ltd. v. Chandumull Jain & Anr. (1966) 3 SCR 500;
xi) Suraj Mall Ram Niwas Oil Mills (P) Ltd. v. United India ins. Co. Ltd. (2010) 10 SCC 567;
xii) UIIC v. Harchand Rai Chand Rai Chandanial I (2003) CPJ 393; and
xiii) Branch Manager, Bajaj Allianz Life Insurance Co. Ltd. & Ors. v. Dalbir Kaur Civil Appeal No.3397 of 2020 (Arising out of SLP (C) No.10652 of 2020).
9. We have given thoughtful consideration to the respective contentions of the parties.
10. Admittedly, the DLA (husband of the complainant) during his lifetime purchased insurance policy Ex.C-1 from OPs No1. & 2-Insurance Company through OP No.3-HDFC Bank through Net-Banking. Said policy was valid from 05.09.2018 to 04.09.2020 and it provided personal accidental cover for Rs.25 lac. During the validity of the said policy, the DLA met with an accident with a truck on 18.09.2018 and died at the spot. FIR Ex.C-2 was lodged in P.S. Sirhali, District Tarn Taran on the same day. The claim lodged by the complainant was repudiated, vide letter dated 31.12.2018, Ex.OP-4, on the ground that on verification of claim, it was revealed that the DLA was having previous history of hospitalization from 02.12.2017 to 21.12.2017 for Retroperitoneal Tumor, which was not disclosed by him while taking the insurance policy.
Consumer Complaint No.862 of 2019 9
11. The only question for determination is as to whether the repudiation of the claim of the complainant on the above referred ground is legal or not?
12. The word 'Accident' has wide meaning. An accident is an occurrence or an event, which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is not the happening of the expected but the happening of the unexpected, which is called as an accident. The happening of something, which is not inherent in the normal course of events and which is not ordinarily expected to happen or occur, is called a mishap or an accident.
13. Perusal of FIR Ex.C-2 shows that on 18.09.2016 at about 4.30 a.m., the DLA along with his nephew Sh. Baljinder Singh was going on his motorcycle bearing Registration No.PB-46- AA-2643. The motorcycle was being run by Baljinder Singh at a normal speed and when they reached near Petrol Pump, Jandoke, a loaded truck came at a high speed without blowing any horn and hit their motorcycle. As a result, the motorcycle lost balance and they fell down and left arm and chest of the DLA were crushed under the rear tyre of the truck and he died at the spot.
14. Perusal of Postmortem Report (at Pages184 to 191), which has been produced by OPs No.1 & 2 themselves, clearly show that there was presence of blood, froth etc. in mouth, nose, ear and other parts of body of the DLA after the accident. Liver, gall bladder, spleen, pancreas, both kidneys etc. were crushed during the accident. Cause of death is mentioned as under: Consumer Complaint No.862 of 2019 10
"All the injuries are antemortem in nature and the cause of death in this case in my opinion is haemorrhage and shock, due to injury to vital organs, which is sufficient to cause death in ordinary course of nature."
15. Thus, it is clear from the Postmortem Report that the death of the DLA had occurred only due to injuries sustained by him in the accident. OPs No.1 & 2 have relied upon certificate Ex.OP-3 issued by Dr. Jagtar Singh of Jeevanjot Hospital, Amritsar, in which it is mentioned that the DLA remained admitted therein from 02.12.2017 to 21.12.2017 with Retroperitoneal Tumor. However, there is no date mentioned on this certificate. Even no treatment record has been produced by OPs No.1 & 2 to prove the contents of this certificate. Be that as it may, it is pertinent to note that it is specifically mentioned in that certificate that DLA was discharged in a satisfactory state on 21.12.2017. It is nowhere mentioned in that Postmortem Report that said ailment of Retroperitoneal Tumor was the cause of death of the DLA, rather he died due to hemorrhage and shock suffered due to accidental injuries at the spot. In such circumstances, the alleged hospitalization of the DLA had no nexus with his accidental death on 18.09. 2018. The claim of the complainant does not arise from hospitalization of DLA for any pre-existing disease, but it has been raised due to sudden death of the DLA in an accident. Therefore, non-disclosing of such hospitalization while taking the insurance policy cannot be made a ground to repudiate the genuine claim of the complainant.
16. In the Permanent Exclusions of the insurance policy, it is mentioned that any claim, in respect of pre-existing disease or Consumer Complaint No.862 of 2019 11 injury or disability arising out of a pre-existing disease or any complication arising therefrom, shall not be payable. However, the DLA died as a result of injuries suffered by him in a road accident and the Insurance Company has failed to prove that the death of the insured has any relation/nexus with any pre-existing disease.
17. OPs No.1 & 2 have also not led any evidence to prove that the death of the DLA occurred due to alleged ailment of Retroperitoneal Tumor. The onus to prove that said ailment had any nexus with the accidental death of the DLA was on OPs No.1 & 2, which they have miserably failed. We are fortified in this regard from the judgment dated 07.01.2019 passed by the Hon'ble Madras High Court in C.M.A.Nos.2957 of 2018 and 1240 of 2017 and C.M.P.No.22408 of 2018 (Oriental Insurance Co. Ltd. v. L. Ariamala). In Para-11 of that judgment, it was held as under:
"11.The contention of the learned counsel appearing for the second respondent/Insurance company is that the deceased suffered only simple injury in the accident and did not die due to such injuries. He died only due to pre- existing liver disease and it has been stated so in the post-
mortem report. The second respondent/Insurance
Company has not substantiated their case
http://www.judis.nic.in that the deceased sustained only simple injury. On the other hand, the claimants have produced the post-mortem report. The Tribunal considering the post-mortem report, has concluded that pre-existing liver disease could have been aggravated due to shock of the accident. There is no error in the said reasoning of the Tribunal. In the absence of any evidence with regard to nature of injuries sustained by the deceased, the Tribunal has rightly held that the second respondent/Insurance Consumer Complaint No.862 of 2019 12 Company failed to examine any Doctor to substantiate their contention. The second respondent having taken a specific stand in the additional counter affidavit that the deceased died only due to pre-existing liver disease, the burden is on the second respondent to prove the same and the second respondent has failed to discharge the said burden. It is pertinent to note that the accident took place on 23.11.2006 and the deceased died on 30.11.2006 within seven days of the accident. Hence, the finding of the Tribunal that the deceased died due to the injuries sustained in the accident is valid and proper. There is no error in the said findings of the Tribunal warranting interference by this Court."
18. Hon'ble Supreme Court in Civil Appeal No.8245 of 2015 (Sulbha Prakash Motegaonkar & Ors. v. Life Insurance Corporation of India) decided on 05.10.2015 held as under:
"The husband of appellant No. 1 herein had taken out a Life Insurance Policy. At the time of taking the policy, he had concealed the fact that he was suffering from lumbar spondilitis with PID with sciatica for which ailment he was taking medical treatment as also he had availed leave on medical grounds.
After the policy was given to the husband of appellant No. 1, he suffered myocardial infarction and succumbed to the ailment. When the appellants made a claim in terms of the life insurance policy, they were told that because the deceased had not disclosed his ailment of lumbar spondilitis with PID with sciatica at the time of filling up of the proposal form, therefore, the claim was repudiated.
The repudiation of the appellants' claim has been upheld by the National Commission and it is under these circumstances the appellants are before this Court.Consumer Complaint No.862 of 2019 13
We have heard learned counsel for the parties.
It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondilitis with PID with sciatica persuaded the respondent not to grant the insurance claim.
We are of the opinion that the National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with his lumbar spondilitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified."
19. In case New India Assurance Company Limited Versus Smt. Usha Yadav & others 2008(3) R.C.R. (Civil) 111, the Hon'ble Punjab & Haryana High Court expressed its anguish and observed as follows:-
"It seems that the Insurance Companies are only interested in earning the premiums, which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine claims. The insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus, pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which Consumer Complaint No.862 of 2019 14 would not be governed by the strict conditions contained in the policy."
20. The claim of the complainant is duly covered under Clause I.1-Accidental Death Cover (AD) of the terms and conditions of the insurance policy Ex.OP-1, which reads as under:
"If the insured person suffers an injury solely and directly due to an accident which occurs during the policy period and that injury results in the death of the insured person within 365 days from the date of accident, we shall pay the sum insured as specified in the policy schedule/the Product Benefit Table including any PA, Cumulative Bonus as applicable."
21. In view of our above discussion as well as the ratio of law laid down in the aforesaid authorities, it is clear that the claim of the complainant has been wrongly and illegally repudiated by OPs No.1 & 2. The authorities relied upon by the learned counsel for OPs No.1 & 2 are distinguishable in view of law laid down in the above citied authorities as well as facts and circumstances of the present case. The complainant is entitled to the insurance claim on account of accidental death of the DLA. The complainant has suffered mental agony and harassment on account of non- payment of her genuine claim. Therefore, she is also entitled to suitable compensation on account of this reason.
22. So far as the complaint against OP No.3-HDFC Bank is concerned, no deficiency in service has been alleged against it nor proved on record. It just was an intermediary between the insured and the insurer. Hence, it cannot be held for payment of insurance claim to the complainant. However, it is made clear that OP No.3, being intermediary, shall provide all necessary assistance for getting the insurance claim paid to the complainant. Consumer Complaint No.862 of 2019 15
23. Accordingly, the complaint is allowed and the following directions are issued:
i) OPs No.1 & 2 shall pay the insurance claim of Rs.25 lacs under the insurance policy, in question, to the complainant, along with interest at the rate of 7% per annum from the date of repudiation of the claim i.e. 31.12.2018 till realization;
ii) OPs No.1 & 2 shall also pay a sum of Rs.30,000/- as compensation for the mental agony and harassment suffered by the complainant, including litigation expenses.
iii) OPs No.3, being intermediary, shall provide all necessary assistance for getting the insurance claim paid to the complainant.
iv) Compliance of the order shall be made by OPs No.1 & 2 within a period of 45 days of the receipt of certified copy of the order.
24. The complaint could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (MRS. KIRAN SIBAL) MEMBER February 01, 2022.
(Gurmeet S)