State Consumer Disputes Redressal Commission
C. Kalaiselvi, Pudukottai Dist. vs The Branch Manager, Housing ... on 3 August, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.37/2017
Date of complaint filed : 18.07.2017
Date of orders pronounced : 03.08.2023
C.Kalaiselvi,
W/o M.Chinnadurai,
452, Velapudaiyanpatti,
Alangudi Village,
Neerpalani Post,
Viralimalai Taluk,
Pudukottai District. Complainant
-Vs-
1. The Branch Manager,
Housing Development Finance Corporation Limited,
'Achuta'
111, Bharathidasan Salai, Cantonment,
Tiruchirappalli - 620 001.
2. The Authorized Officer,
HDFC Standard Life Insurance Company Limited,
Lodha Excelus 13th Floor,
Apollo Mills Compound, N.M.Joshi Marg,
Mahalaxmi, Mumbai - 400 011. Opposite Parties
Counsel for Complainant : Mr.A.John Vincent, Advocate.
Counsel for Opposite Parties-1&2 : Mr.M.Senthilkumar, Advocate.
This complaint came before me for final hearing on 02.08.2023 and upon
perusing the material records this Commission made the following:-
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ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The complainant's case :
The complainant is the wife of one Chinnadurai since deceased. The above said Chinnadurai had availed a home loan of Rs.20,00,000/- from the first opposite party on 27.06.2015. Subsequently, on the advice of first opposite party he took an insurance on 30.08.2015. The insurance premium was Rs.89,941/- and it was top up with the existing housing loan of Rs.20,00,000/-. Towards the housing loan the monthly EMI is Rs.26,876/-, and for the premium amount the monthly EMI is Rs.1209/-. Even before taking the housing loan and insurance policy the above Chinnadurai underwent a thorough medical check-up at Apollo Hospital Trichy on 13.11.2014 and after accepting the same the Policy was issued in the name of above said Chinnadurai. While so, on 04.05.2016 the above said Chinnadurai suffered chest pain and he was admitted in Kauvery Hospital, Trichy, Cardiologist Dr.Anand Subramaniyan after the Echocardiogram (ECG) diagnosed that there is an acute anterior wall MI and severe LV systolic dysfunction and there was a need for primary PCTA. Coronary angiogram and DES to LAD was done. He underwent PTCA with stenting to Ostia-mid LAD. The doctors in the hospital informed that he was symptomatically improving with persistent LRI/ARDS. On 20.05.2016 the condition of above said Chinnadurai become worsened and he was taken to Kovai Medical Center and Hospital at Coimbatore on 24.05.2016 and after a prolonged treatment he died on 12.06.2016. The cause of death is septic shock leading 3 to multi organ failure and coronary syndrome. Thereafter, the complainant applied for the insurance claim and to her shock she received a letter on 09.12.2016 repudiating that the complainant had not disclosed coronary syndrome at the time of applying the policy. The above repudiation is not valid and after satisfying the health report the Policy was issued. Hence, she filed this complaint seeking to reimburse Rs.20,89,941/-
towards the death claim with interest at the rate of 18%, per annum, and Rs.5,00,000/- towards compensation for mental agony and damages and also cost of the proceedings.
2. The opposite parties failed to file any written version in time.
3. In this complaint, the complainant alone was examined as PW1 by filing proof affidavit and on her side Ex.A1 to Ex.A10 were marked.
4. As stated earlier it is the case of the complainant that, her husband availed a housing loan as well as obtained insurance policy to cover the lo as a security arrangement. This fact was not denied by the opposite parties. Further Ex.A2 & Ex.A3 is clearly proved that the complainant husband availed housing loan as well as insurance policy and the above amount was already top up with the housing loan. It is the specific case of the complainant that even before taking the housing loan the complainant's husband took a medical check-up and the facts was disclosed to the insurance company. The medical report is marked as Ex.A1. The insurance company vide their letter which is marked as ExA9 repudiated the policy as follows:-
"In this connection we refer to the section B of SHORT MEDICAL QUESTIONNAIRE in the Member Information Form, which deals with 'HEALTH DETAILS 4 OF INSURED MEMBER'. Under this section the following relevant questions had been answered as 'No' SECTION 8 - SHORT MEDICAL QUESTIONNAIRE - HEALTH DETAILS OF INSURED MEMBER
1. Have you ever suffered or are currently suffering from: (a) Chest pain or heart attack or any other heart disease (b) Cancer, tumor growth or cyst of any kind (c) Stroke, paralysis, Epilepsy, Yes any psychiatric/mental disorder, disorder of brain/nervous system or any kind of physical disabilities (d) Asthma, Tuberculosis or other lung disorder (e) Diseases or disorder of No muscles, bones or joints, arthritis or blood disorder (anaemia) or any endocrine disorder (f) Diseases of the kidney, digestive system (stomach, pancreas, gall bladder, intestine) liver, hepatitis B or C or HIV/AIDS infection (9) Diabetes, high blood pressure However, our investigations have established that the Life Assured was suffering from Acute Coronary Syndrome, Percutaneous Transluminal Coronary Angioplasty with Drug-Eluting Stent on ventilator with Polyneuropathy with septicemia with Multiple Organ Failure was under treatment for same prior to the policy issuance, which was not disclosed in the application for insurance. Had this information been provided to the Company at the time of applying for the insurance Policy, we would have declined the application." Except this reason they accepted the factum of death of insured as well as their liability to pay the insurance claim towards death benefits. 5
5. Now the point for consideration is:
Whether the above repudiation of the claim is valid, if not what relief to be given to the complainant?
6. Discussion on Point: As stated earlier the opposite parties did not file any written version and disputed the correctness of the facts alleged in the complaint. However, as per Ex.A9, the repudiation is only based upon non disclosure of pre- existing disease. First of all, as shown in the repudiation it is not a disease in itself. The procedure underwent by the deceased Chinnadurai has been re-produced in a mechanical manner. The Apex court highly deprecated such kind of repudiation of policy claim in a mechanical way. So the repudiation was not based upon any pre- existing disease as such the repudiation itself is invalid.
7. As per the questionnaire form the insurance company asked a very complex question by mixing the number of diseases such as stroke, paralysis, Cancer, disorder of muscles, Asthma, Tuberculosis and so on.... and expected the insurer to answer whether he suffered from those diseases by saying 'YES or NO' ? When a complex question that too asked by combining all diseases were asked any answer to the question would be either partially correct or partially false..
8. In this aspect the learned counsel relied upon the Judgement of the Apex Court in, -Manmohan Nanda .Vs. United India Insurance Co. Ltd. on 6 December, 2021. Wherein many Judgements were referred as follows: 6
a) In General Assurance Society Ltd., .vs. Chandmull Jain - AIR 1966 SC 1644, it was held that where there is an ambiguity in the contract of insurance or doubt, it has to be construed contra proferentem against the Insurance Company.
b) In Delhi Development Authority v. Durga Chand Kaushish - AIR 1973 SC 2609, it was observed: "In construing a document one must have regard, not to the presumed intention of the parties, but to the meaning of the words they have used. If two interpretations of the document are possible, the one which would give effect and meaning to all its parts should be adopted and for the purpose, the words creating uncertainty in the document can be ignored."
c) Further, in Central Bank of India v. Hartford Fire Insurance Co. Ltd. AIR 1965 SC 1288, it was held: "What is called the contra proferentem rule should be applied and as the policy was in a standard form contract prepared by the insurer alone, it should be interpreted in a way that would be favourable to the assured."
d) In Md. Kamgarh Shah v. Jagdish Chandra AIR 1960 SC 953, it was observed that where there is an ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor's document it has to be interpreted strictly against him and in favour of the grantee. 7
e) In United India Insurance Co. Ltd. v. Orient Treasures (P) (2016) 3 SCC 49 this Court quoted Halsbury's laws of England (5th Ed. Vol. 60, Para 105) on the Contra Profrentem rule as under :
"Contra proferentem rule. Where there is ambiguity in the policy the court will apply the contra proferentem rule. Where a policy is produced by the insurers, it is their business to see that precision and clarity are attained and, if they fail to do so, the ambiguity will be resolved by adopting the construction favourable to the insured. Similarly, as regards language which emanates from the insured, such as the language used in answer to questions in the proposal or in a slip, a construction favourable to the insurers will prevail if the insured has created any ambiguity. This rule, however, only becomes operative where the words are truly ambiguous; it is a Rule for resolving ambiguity and it cannot be invoked with a view to creating a doubt. Therefore, where the words used are free from ambiguity in the sense that, fairly and reasonably construed, they admit of only one meaning, the Rule has no application."
Following the above dictum this Commission held in this case that the insured did not intend to hide any fact regarding his health, much less there is no willful suppression of any material fact.
9) Similarly in a recent judgement the Madras High Court in Jasmine Ebenezer Arthur .Vs. Hdfc Ergo General Insurance ... on 6 June, 2019 has held that, The petitioner had made her claim after her husband's death under the head "major medical illness" with all relevant documents. However, it was 8 intimated to her that the only missing document was "cause of Ventricular Fibrillation and Cardiac Arrest from treating Doctor". The petitioner again obtained a report from Mafraq Hospital, dated 22.11.2015 as per which, the cause of death was "acute coronary artery syndrome". As per Section 3 of the Policy in question the medical event of "Myocardial Infarction" was covered under the Policy. Though the cardiac arrest suffered by the husband of the petitioner falls under the above said medical event, the first and second respondents are denying the rightful claim to the insurance cover.
17. In view of the doubt raised by the first and second respondents, this Court was desirous of obtaining a medical report from the Experts clarifying the above referred terms "Acute Coronary Syndrome (ACS)" and "Myocardial Infarction (MI)". Accordingly, a report from Expert Cardiologist was sought for through the Dean of Rajiv Gandhi Government General Hospital, Chennai, for which, learned counsel for respondents 1 and 2 has no objection. An opinion was obtained from Dr.M.Nandakumaram, M.D. D.M.(Cardio), Professor http://www.judis.nic.in of Cardiology (C-VI Unit), Madras Medical College and Rajiv Gandhi Government General Hospital, on 07.03.2019, which reported as follows: Hence, I am of the opinion and report that ACUTE CORONARY SYNDROME (ACS) includes MYO-CARDIAL INFARCTION (MI). The Cause of Death in MI can be due to VENTRICULAR FIBRILLATION (VF). If the patient had died of ACS & VF the cause of Death can be considered due to MYO-CARDIAL INFARCTION (MI)." From the above, 9 it is very clear and evident that the cause of death of the insured is well within the defined medical events prescribed in the policy.
10. So, considering the above Judgements the repudiation of the policy by the insurance company amounts to deficiency in service and the repudiation is not valid. The above illegal repudiation affected the complainant heavily and certainly would cause great mental agony. Moreover, as per interim application filed by the complainant it was brought to the knowledge of the commission that the opposite parties also took proceedings to recover the loan amount. Normally the Bank charges higher interest or their outstanding and the purpose of taking insurance to cover the loan in case of untoward happen.., so considering the interest would have been claimed by the opposite parties this Commission mould its relief and award interest to the claim..
11. This Commission also took note that the bank as well as insurance company are belonged to same group and their close proximity in doing business So, considering all the aspects i. The insured did not suffer from any such pre existing decease as alleged in the repudiation at the time of taking insurance.
ii Since in the printed contract there is an ambiguity, the fact against the Insurance Company is considered as there is no willful suppression of material facts.
iii. The death and the liability to pay insurance amount otherwise not disputed in the repudiation letter, the complaint is allowed in entirety. Hence, the first and second opposite parties are jointly and severally liable to pay death claim of Rs.20,89,941/- with interest at the 10 rate of 18% per annum from the date of repudiation till its realization, and both parties are directed to pay Rs.5,00,000/- towards compensation for deficiency in service and mental agony and also the opposite parties further directed to pay Rs.5000/- as costs to the complainant and answered the point accordingly.
12. In the result,
1. The complaint is allowed.
2. The first and second opposite parties are jointly and severally to pay death claim of Rs.20,89,941/- with interest at the rate of 18% per annum from the date of repudiation till its realization and also to pay Rs.5,00,000/- towards compensation for deficiency in service and mental agony.
3. The opposite parties are further directed to pay Rs.5000/- as costs to the complainant.
4. Time for compliance: One month from the date of receipt of copy of this order.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 03rd day of August 2023.
Sd/-xxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant
Ex.A1 13.11.2014 Medical reports from Apollo Speciality Hospitals
Ex.A2 27.08.2015 Home Loan Agreement
Ex.A3 30.08.2015 Home Equity Loan Agreement
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Ex.A4 24.05.2016 Discharge Summary at Kauvery Hospital, Trichy Ex.A5 12.06.2016 Treatment Summary at Kovai Medical Center and Hospital Ex.A6 28.06.2016 Death Certificate (12.06.2016) Ex.A7 05.07.2016 Succession Certificate Ex.A8 29.10.2016 Acknowledgement letter form HDFC Ex.A9 09.12.2016 Letter from HDFC-Declining the claim Ex.A10 17.05.2017 Representation to the Claims Review Committee List of documents marked on the side of opposite parties.
-Nil-
Sd/-xxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
12Corrected