(ORDER BY Sri.Sk.MOHD.ISMAIL, PRESIDENT) The complainant filed this complaint against the opposite party Nos.1 to 4 under section 12 of Consumer Protection Act, 1986, to direct the opposite parties to pay an amount of Rs.19,86,288/- together with subsequent interest @18% per annum from 20-02-2017 till the date of payment to the complainant, directing the opposite parties to pay the costs of this complaint and grant such other relief and submits to allow the complaint with costs.
2. The brief averments of the complaint are as follows that:the complainant submitted that the complainants wife Nukaraju Madhavi aged 41 years availed Home Equity Loan of Rs.12,49,993/-, vide loan account No.613335413 and a personal loan of Rs.3,50,000/- vide loan account No.29502011948216000 from the second and third opposite parties respectively, and at the time of granting the loan, the second and third opposite parties insisted the deceased and the complainant to take insurance policies without disclosing the features of the policy. As there was no way, they took the policies and the premiums thereof were also debited to her loan account. The complainant and his deceased wife are under the impression that everything is covered under the policy. The said policy is Home Surksha policy No.2918200864232700 000 by paying a premium of Rs.49,993/- (Rupees forty nine thousand nine hundred and ninety three only) for the period from 27-09- 2014 to 26-09-2019 and coverage includes Fire & allied perils, burglary & theft, major medical illnesses & procedures, personal accident and loss of job. A sum of Rs.4,203-00 was also debited to her account towards the premium for Sarv Suraksha Policy bearing No.2950201194821600000 for the period from 05-10- 2015 to 04-10-2020 and coverage includes Credit Shield insurance, Accidental Hospitalization , Accidental death, permanent total disability/permanent partial disability and critical illness. The complainant is also joint borrower/co-obligant to the said home equity loan and he is a nominee to SarvSuraksha Pro policy. The complainants wife Nukaraju Madhavi suddenly felt shortness of breath and she went to Dr.C.Bhakthavatsala Reddy, Cardiac Care Center in Pogathota, Nellore on 27-01-2016 and after investigations, he informed that there was moderate aortic Stenosis and advised to go to a Higher institution. Hence, she went to Star Hospital, Banjara Hills, Hyderabad on 10-02-2016 and after investigations i.e., ECG, 2D Echo, USG abdomen and pelvis and CAG they diagnosed as sub aortic stenosis due to sub-aortic membrane and the doctors advised for excision of sub-aortic membrane which is a major surgery. The complainant submitted that complainants wife Nukaraju Madhavi went to fourth opposite partys Sunshine Hospital, Secunderabad to avail A.P.Governments EHS facility on 17-10-2016 and 2D test was done and they advised to admit for surgery. On 20-10-2016 complainants wife Nukaraju Madhavi admitted there under A.P.State Government Employees Health Scheme. The doctors conducted several tests and sent for proposals for approval of Sub- valvar Aortic Stenosis (Sub-aortic Membrane) surgery from AP State Government Employees Health Scheme. The surgery was conducted after approval from EHS authorities on 01-11-2016. Post operation, her general condition was fair, vitals were stableas mentioned in the discharge summary and discharged on 08-11-2016 and advised to attend for review after 11 days. The fourth opposite party hospital gave a discharge summary to A.P.State Government Employees Health Scheme and recovered the expenses of the surgery from it. The said discharge summary dated 08-11-2016 shows chest pain & SOB in the history of present illness column, no history found in the past history illness column. Another discharge summary was given to the deceased Madhavai and the complainant herein where in the complaint of chest pain and shortness of breath since 2 years. The complainant herein did not understand why it is mentioned as 2 years when it is first diagnosed at Nellore on 27-01-2016 only. Then, the complainant questioned the hospital authorities and they stated that by oversight of his employee the said mistake was happened and further stated that they would inform the said mistake to the first opposite party. Believed their words the complainant submitted the uncorrected discharge summary which was wrongly noted as two years to the opposite parties. The complainants wife went to fourth opposite party Sunshine Hospital on 18-11-2016 for review and check-up as per the doctors instructions. After return from Hyderabad, the complainants wife Nukaraju Madhavi developed shortness of breath and gasping on 27-11-2016 and she was taken to Simhapuri Hospital around 07.10 P.M. and the doctors tried their best to save her but in vain. The doctors in Simhapuri hospital declared dead due to Acute Pulmonary Edema, Aortic dissection and the cause as sub-aortic membrane due to consequence of S/P (s/p means after) excision of sub-aortic membrane. Under the above circumstances, as per the insurance policy, the complainant who is the nominee of the said policy submitted the claim no.C291816001011 on 03-01-2017 along with necessary documents of hospitals for settlement of claim under the HOME SURKSHA PLUS policy No.2918 2008 64232700 000 on the ground of critical illness as value repair (Sub-valvar aortic Stenosis with ridge in LVOT) to the 1st opposite party. The complainant also submitted a claim 295016008560 under SurvSuraksha Pro policy No.2950 2011 9482 1600 000 as the legal heir of his wife. Then the 1st opposite party sent a letter dated 10-01-2017 with the wrong name mentioning as KARUMA instead of Karunakar requiring the complainant to submit additional documents noted therein regarding Home Suraksha policy. The first opposite party demanded legal heir certificate from Tehsil or District Civil Court and also no objection from other legal heirs, which are not at all necessary for settling the claim. The complainant submitted the additional documents as required by the 1st opposite party on 18-01-2017 by registered post. The first opposite party sent a letter of repudiation of claim dt.27-01-2017 informing the claimant that said critical illness is not covered under the policy. Without applying their mind the first opposite party repudiated the Home Suraksha policy. The complainant submitted that the first opposite party on the other hand sent the repudiation letter dated 13-01-2017 repudiating the SarvSurakshan Pro on the ground that the discharge summary dated 20-10-2016, Late Ms.Nukaraju Madhavi had complaints of chest pain and shortness of breath since 2 years and was diagnosed to be suffering from Sub-valvar Aortic Stenosis and whereas the policy inception is 05-10-2015 and hence the condition of pre-existing disease and the same is excluded under the policy. The repudiation is illegal and not valid one. The fourth opposite party negligently wrote 2 years in the discharge summary instead of 9 months, on the other hand the discharge summary submitted to the EHS mentions past illness not found. The deceased first consulted in Nellore and then in the Star Hospital on 10-02-2016. Earlier she does not have any illness. Because of the negligence of the fourth opposite party the discharge summary shows 2 years. Since she is a Government employee the record of past illness can be easily be verified by the first opposite party. On 06-02-2017, the complainant herein sent the copies of the documents 2D Echo Cardiogram by Dr.C.Bakthavatchala Reddy dated 27-01-2016, discharge summary of Star Hospital, Corrected discharge summary issued by the fourth opposite party and also discharge summary issued by A.P. Government EHS. The fourth opposite party did not send the corrected discharge summary to the first opposite party. The fourth opposite party issued the corrected discharge summary after lot of persuasion by the complainant. For the self-same illness, the first opposite party repudiated the policies on two different grounds. Thus, there is lot of deficiency of service on the part of the first opposite party and other opposite parties are equally responsible for repudiation of the claim and hence all of them are liable to pay the amount due under the policies to the complainant. After the receipt of corrected discharge summary also, the first opposite party did not consider the claim of the complainant. The complainant further submitted that on 31-01-2017 a person by name D.Naga Malleswara Rao came to his residence for personal enquiry after repudiation of the claims. The complainant gave written statement in writing to him along with the corrected hospital discharge summary and all other documents. It is submitted that the second and third opposite parties forced the complainants wife to take the insurance policies and it amounts to unfair trade practice. The second opposite party should have insured for death also. It should have been comprehensive cover. Further when such huge amount is debited from her account; it is the bounded duty of the second and third opposite arties to pursue the claims with the first opposite party. By forcing all the borrowers, to take insurance policies for the sake of earning huge commission only, the second and third opposite parties are insisting to take the insurance policies and it amounts to an unfair trade practice and deficiency of service on their part. The agent of the said policies is the HDFC SALES PRIVATE LTD which is a group company of the first, second and third opposite parties. This also comes squarely within the purview of unfair trade practice. The fourth opposite party issued two discharge summaries mentioning the pre- existing illness for the last 2 years in one discharge summary and other discharge summary does not have any pre-existing illness. Due to this also the first opposite party rejected claim. The deceased Madhavi does not have any pre-existing illness. Thus there is negligence on the part of fourth opposite party in giving two different sets of discharge summaries. Hence, it is also liable to pay the amount equaling to the said two policies as the first opposite party repudiated the policies on the ground of past illness. There is no past illness. The complainant further submitted that thus there is a lot of deficiency of service ad also negligence on the part of opposite parties, the complainant suffered lot of mental agony and hardship and they are liable to pay compensation of Rs.3,50,000/- to the complainant and the complainant submits to allow the complaint with costs.
3. The opposite party No.1 filed written version with the following averments that:- the insurance policy between the insurer and the insured is nothing but a contract of utmost good faith (i.e., Uberrimae fidei) between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of the risk covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. The opposite party No.1 submitted that this opposite party herein issued two policies by name SARVASURAKSHA POLICY covering the period 05-10-2015 to 04-10-2020 bearing no.2950201194821600000 by collecting a sum of Rs.4,203/- and HOME SURAKSHA policy covering the period 27-09-2014 to 26-09-2019 under policy bearing no.2918200864232700000 by collecting a sum of Rs.49,933/- and those policies were issued subject to the compliance of terms and conditions those were mentioned on the face of the policy which were issued to the complainants wife by name Nukaraju Madhavi. As per recitals this opposite party came to know that she was a Govt.Employee and later she was demised on 27-11-2016 in Simhapuri Hospitals, Nellore due to her illness. At the time of taking of those two policies she had nominated her husband by name S.Karunakar as per record and the same was registered. The opposite party No.1 submitted that as per the terms and conditions of those two policies the pre-existing disease will not cover under any event of illness subsequent to taking of policies by the diseased. Further the complainant herein subsequent to the death of his wife at the time of submitting the claim forms he had submitted two discharge summaries give by the Sun Shine Hospital, Hyderabad. It clearly shows that the complainant had not come forward with clean hands to defend his case properly moreover as the complainants wife is suffering from chest pain and shortness of breathing since two years and those were not covered as per the terms and conditions of the policy this opposite party rightly repudiated the claim submitted by the complaint herein and the same was communicated. The opposite party No.1 further submitted that the claim under SARVASURAKSHA POLICY was dealt with critical illness cover and this opposite party liability is registered upto sum insured Rs.1,00,000/- only. As per the SUNSHINE hospital discharge summary dated 20-10-2016 the complainant wife late Ms.Nukaraju Madhavi had the complaints of chest pain and shortness of breath since 2 years and diagnose to be suffering from subvavar Aortic Stenosis but the policy was incepted only on 05-10-2015 i.e., that the said ailment was pre- existing to the commencement of the policy and the same is excluded under the policy hence by referring exclusion clause the said claim was repudiated by stating that no payment will be made by the company for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:- Any critical illness for which care, treatment or advice was recommended by or received from a physician or which manifests itself or was contracted before the start of the policy period or far which a claim has or could have been made under any earlier policy Hence, the claim was repudiated as per the exclusion of the policy terms and conditions. After the repudiation, the complainant and SUNSHINE hospital had colluded and issued another discharge summary to accommodate the ailment within the scope of the policy by stating that Shortness of breath since 9 months which is not acceptable and permissible under law. The opposite party No.1 further submitted that the claim under HOME SURAKSHA POLICY was dealt with Major Medical illness coverage and procedure. As per the said cover only the following diseases will cover : 1) Cancer
2) End Stage Renal Failure 3) Multiple Sclerosis 4) Major Organ Transplant 5) Heart Vale Replacement 6) Coronary Artery Bypass Graff 7) Stroke 8) Paralysis 9) Myocardial Infarction. Hence, the ailment of the complainant wife will not fall under the coverage of Major Medical illness coverage and procedure under Home Suraksha policy hence the said claim also repudiated as per the policy terms and conditions. The opposite party No.1 further submitted that as per the recitals the complainants wife was a Govt. Employee and subsequently she was demised on 27-11-2016 in Simhapuri hospitals Nellore due to her illness. At the time of taking the above referred two polices she had nominated her husband by name S.Karunakar who is the complaint here in as NOMINEE. The opposite party No.1 further submitted that as per the terms and conditions of those two policies, the ailment of the complainant wife itself was not covered under the Home Suraksha policy and the pre-existing disease will not cover under the Sarvas Suraksha policy, any event of illness subsequent to taking of two policies by the complainants wife and the same was printed on the face of the policy. The said fact was came in to light after submitting the claim forms by the complainant here in along with two discharge summaries given by different hospitals i.e. one is by name Sun Shine Hospitals and another is Star Hospitals Hyderabad. As per the discharge summary given by the Sun Shine hospitals dt: 08-11-2016 the complainants wife by name N.Madhavi is suffering from shortness of breath since two years. Basing on the documents it was clearly established that the complainant had not come forward with clear hands to defend his case. After keen observation of entire record this opposite party rightly repudiated by the claim submitted by the complaint and the same was communicated properly by way of letters dated 13-01-2017 and 14-02-2017. Subsequent to that the complainant here in got filed the above complaint against these opposite parties with a view to get wrongful gain by suppressing the earlier disease of complainants wife and further the shorting of breath problem will not cover as per the terms and conditions of the policy issued to the complainants wife and the opposite party No.1 submitted for dismissal of the complaint against the opposite party No.1.
4. The opposite party No.2 filed written version with the following averments that:-the opposite party No.2 submitted that there is no deficiency of service on the part of opposite party No.2 and all the material allegations made by the complainant against the opposite party No.2 are false, baseless and are cooked up for the purpose of filing the above complaint and as such this complaint is liable to be dismissed in limini against the opposite party No.2. The opposite party No.2 further submitted that the opposite party No.2 is a Housing Finance Company (HFC) duly incorporated under the Companies Act, 1956, having its registered office in Mumbai and having branch offices at various places of India and one of its branches also in Nellore. The opposite party No.2 further submitted that the complainant had availed the loan from opposite party No.2 (HDFC Limited) by executing the loan agreement and other loan documents, hence the complainant is not a Consumer within meaning of the Consumer Protection Act, 1986 and the complaint under reply arises out of the contractual obligations, as such the Honble Forum has no jurisdiction to entertain the complaint. The opposite party No.2 further submitted that the complainant had set out false and baseless allegations against the opposite party No.2 herein and the opposite party No.2 herein specifically denies the averments/allegations made against this opposite party No.2 in toto except those that are specifically admitted herein and the complainant is put to the strict proof of the same. The opposite party No.2 herein did not commit any deficiency of service to the complainant and further there is no whisper in the complaint attributing any deficiency of service against the opposite party No.2 and the complaint filed against the opposite party No.2 is neither maintainable under law or on facts and is liable to be dismissed in limine. It is further submitted that, the complainant is not a Consumer within meaning of the Consumer Protection Act, 1986 and the complaint under reply arises out of the contractual obligations, as such the Honble Forum has no jurisdiction to entertain the complaint. The complainant has availed Mortgage Loan from the opposite party No.2 by executing the necessary agreements agreeing to the terms and conditions therein as such the complaint filed by the complainants is bad in law and is liable to be dismissed in limine. The alleged dispute against opposite party No.2 does not fall within the purview of the Consumer Protection Act, 1986. The opposite party No.2 further submitted that the complainant along with his deceased wife Smt.Nukaraju Madhavi (borrower) has approached the opposite party No.2 with a request for financial assistance to the tune of Rs.12,49,993/- (Rupees twelve lakhs forty nine thousand nine hundred and ninety three only) against the secured property for their personal needs. Subsequently, the complainant and his deceased wife Smt.Nukaraju Madhavi herein further agreed to purchase Home Suraksha policy from the opposite party No.1 to have protection for the said loan in the event of any illness or death of the borrower, the entire loan outstanding as on that date will be paid by the opposite party No.1 to this opposite party No.2. The complainant and his deceased wife Smt.Nukaraju Madhavi executed the Home Equity Loan Agreement with the opposite party No.2 herein agreeing to the terms and conditions of sanction, disbursement and for the interest accrued thereon. It is submitted that there are no bonafileds on the part of the complainant in filing the present complaint and the complainant is not entitled for any of the relief claimed in the complaint against the opposite party No.2. It is further submitted that the Honble Forum has no jurisdiction to entertain the complaint as the subject matter in dispute arises out of obligations under the loan agreement executed by the deceased borrower. The complainant cannot blame the opposite party No.2 for the claim repudiated by the opposite party No.1, as opposite party No.2 is no way concerned with the policies and process of the opposite party No.1 while clearing the claims. The complainant is estopped to raise the issues related to process of the claim and deficiency against opposite party No.2 and the complaint against the opposite party No.2 is devoid of merits and is ought to rejected/dismissed. This opposite party is a creditor and the rights and obligations interse between complainant and his deceased wife Nukaraju Madhavi and HDFC are purely regulated by the loan agreement executed and it is not the term of the contract, casting an obligation on HDFC (OP No.2) to supervise process of clearing the claim of the complainant with the opposite party No.1. The opposite party No.2 further submitted that this opposite party No.2 never forced the deceased wife of the complainant to purchase the home suraksha policy as stated by the complainant. In fact, the deceased wife of the complainant has shown interest to purchase the policy to have protection against the loan for any unforeseen eventualities. Unfortunately, the wife of the complainant died due to acute pulmonary edema, aortic dissection and the cause as sub-aortic membrane due to consequence of excision of sub-aortic membrane due to consequence of excision of sub-aortic membrane on 27-11-2016. The claim of the complainant is repudiated by the opposite party No.1 as per their letter dated 13-01-2017. The complainant filed the present complaint against this opposite party is only to avoid the repayment of the loan. The opposite party No.2 further submitted that no cause of action has accrued to the complainant for filing the above complaint against the opposite party No.2 and as such the complaint under reply is barred by jurisdiction since the dispute raised is based out of contractual obligations between the complainant and opposite party No.1, it is further submitted that the cause of action pleadings clearly establish that the complainants grievance is against the O.P.No.1,3, and 4 only, but not against this opposite party and as such for the said reasons alone the complaint is liable to be dismissed against the opposite party No.2. It is further submitted that the complainant is not entitled for any relief as against the opposite party (HDFC Limited) No.2 and submits for dismissal of the complaint with costs.
5. The opposite party No.3 filed written version with the following averments that:- the complainant is not a consumer within the meaning of the Consumer Protection Act. It is submitted that as per the Act only a person who has purchased the goods are hired services by paying the consideration can file a consumer complaint. It is submitted that the complainant is neither the borrower nor has deposited any amount with the opposite party. The complainant has not paid any consideration nor hired any services of this opposite party. There is no contractual relationship between the complainant and opposite party. Hence, it is humbly submitted that the present consumer complaint is liable to be dismissed. The opposite party No.3 submitted that the insurance is provided by the opposite party No.1 HDFC ERGO General Insurance Company Limited and not by this opposite party. The complainant has to submit the claim form to HDFC ERGO General Insurance Company Ltd., and the claim would be processed and either accepted or repudiated by the HDFC ERGO General insurance company Limited, though the said fact is well within the knowledge of the complainant, he un-necessarily dragged this opposite party No.3 in litigation, though there is no deficiency in the service of this opposite party, hence the complaint is liable to be dismissed in limini. The opposite party No.3 submitted that complainants wife late Nukaraju Madhavi availed personal Loan from the opposite party No.3 vide loan account No.35475864 and an amount of Rs.3,50,000/- was sanctioned and disbursed. It is submitted that the deceased borrower has to repay the same along with contractual interest in 60 monthly installments of Rs.8465/- each, commencing from 07/11/2015 to 07/10/2020. It is submitted that deceased borrower had paid only 13 installments and as on 06-06-2017 an amount of Rs.3,38,107/- is due and recoverable from the estate of the deceased. It is submitted that as per clause No.13 of the loan agreement at the request of the borrower, the bank may at its own discretion also finance the insurance premium of an insurance policy insuring the borrower against the risk of personal accident, accidental hospitalization, outstanding amount of loan to the bank. It is submitted that at the time of availing the said loan amount, said Mr.Nukaraju Madhavi availed Sarvsuraksha policy from opposite party No.1 which was an Accident Insurance Policy, vide policy No.2950201194821600000 and as per the said policy she was insured for a sum of Rs.3,50,000/- for death due to accident or for permanent or partial disability and the credit shield insurance was for Rs.3,50,000/-. Policy period is insurance is from 05-10-2015 to 04-10-2020. It is submitted that the allegation of the complainant that the OP No.3 has insisted the complainant to take the policy without disclosing the feature of the policy is false. It is submitted that the purchase of insurance policy is not compulsory and it is optional, the complainants wife has decided to purchase the policy to cover the risk of loan at her choice and there was no force from this opposite party No.3 She has opted for the insurance policy from the opposite party No.1 to have the protection for the said loan in the event of any illness or death of the borrower, the entire loan outstanding as on that date will be paid by the opposite party No.1 to this opposite party No.3 and the said claim amount will be adjusted towards the loan outstanding of the deceased. It is submitted that it is clearly mentioned in the said clause No.13 of loan agreement, that the premium amount will be paid by the bank to the insurer and the same will be included in the loan amount and borrower authorizes the insurance company shall pay to the bank the outstanding amount of loan. It is submitted that legal heirs of the deceased can claim insurance amount as per the policy document and if the same is approved by the insurance company, then the insurance company will pay the same to the bank i.e., O.P.No.3 towards adjustment of loan outstanding. The opposite party No.3 further submitted that this opposite party is not insurance company and only the financier and no way concerned with repudiation of the claim and as such there is no deficiency in the service of this opposite party. It is submitted that the opposite party Nos.1 and 3 are separate legal entities and no way concerned with the acts or deficiency of another. If the insurance company has wrongly repudiated the claim, the complainant is at liberty to initiate appropriate legal proceedings against them, but this opposite party is not liable for the repudiation of claim by the opposite party No.1. It is submitted that this case is filed as counter blast to the recovery proceedings that may be initiated by the opposite party No.3 against the legal heirs of the deceased borrower. The opposite party No.3 further submitted that the complainant has not informed about the death of his wife, to opposite party No.3. It is submitted that only through this complaint the opposite party No.3 came to know this fact. Neither the complainant nor the insurance company has informed the same to this opposite party No.3. The opposite party No.3 is not aware of the death of the borrower and also about the repudiation of claim by the opposite party No.1. The opposite party No.3 further submitted that the Honble National Commission in GAUHATI CO-OPERATIVE URBAN BANK LTD. VS.SANTOSH KUMAR TEWARI reported in 1997-NCDRC-027, 1997 (TLS)50000381 held that Great emphasis was laid by the Counsel that the complainants are not consumers as defined under Section 2(1)(d)(ii) of the Consumer Protection Act in relation to the appellant as there is no hiring of services for consideration. There is great force in this submission. The case of the complainants in the nutshell is that the account payee vouchers in the name of the complainants were encashed at different branches of opposite parties 3 to 9 by fictitious persons fraudulently and not that the complainants had hired the services of the appellants and other banks for consideration. Section 2(1)(d)(ii) defines consumer means any person who hires or avails of any service for consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of service for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned persons. Hiring of services for consideration is a condition precedent to make a person consumer. The complainants had to establish the hiring of the services for consideration. In fact no evidence was led by the complainants before the State Commission that the services of the appellant or other banks were hired by the complainants for consideration. If there is any hiring of service of the banks, it is by the unscrupulous persons who had opened accounts in fictitious names and fraudulently encashed the refund vouchers. There is no privity of contract of hiring of service for consideration by the complainant with the bank in these transaction. The complainant in our view are not consumers as defined under the Consumer Protection Act, and the State Commission had no jurisdiction to entertain the complaints and grant the reliefs. The opposite party No.3 further submitted that this opposite party is not aware of the diseases suffered by the complainants wife, and also about the hospitalization and death of the complainant wife. This opposite party was not informed about this by the complainant. The opposite party No.3b is no aware of the discrepancies mentioned in the discharge summaries issued by the opposite party No.4 and also about the repudiation of the claim by the opposite party No.1. It is submitted that the legal heirs of the deceased has to submit the concerned documents and claim form to the insurance company to enable them to process the claim, however this opposite party is not aware of the hospitalization, death and repudiation of the claim as such the complainant cannot expect this opposite party to apply for insurance company for claim amount on behalf of complainant the opposite party No.3 submits for dismissal of the complaint with costs.
6. The opposite party No.4 filed written version with the following averments that:-the opposite party No.4 submitted that at the time of joining of the wife of the complainant, the brother of the complainant by name S.Haranadh took active part and gave particulars of the patient and the disease since 2 years and only basing on the particulars, first discharge summary was given by the 4th opposite party. Subsequently, the said S.Haranadh approached the 4th opposite party with a covering letter requesting to modify the figure since 2 years with 10/02/2016 in Star Hospital. After going through the contents thereof, he was advised to take sworn affidavit from Notary Public and took one Xerox copy thereof. Accordingly, the said S.Haranadh got issued a Sworn Affidavit and produced before the 4th opposite party hospital and basing on such affidavit only, amended discharge summary was issued by this opposite party. The complainant purposefully suppressed all these things and falsely alleged that on his questioning, the 4th opposite party admitted that it is the fault on the part of his employee which are totally false and invented one for purposes of this complaint. Now, keeping aside his brother S.Haranadh, the complainant got filed this complaint. There is no need or necessity to make mistakes by his employees on unknown persons. It is the usual practice of any hospital at the time of joining the patient to note the particulars given by the patients, if they are in a condition to give the particulars or their relatives, if the patient is not in a position to give full particulars about the diseases suffered by the patient and hence it is not at all the negligence on the part of the hospital authorities. The opposite party No.4 further submitted that even as per para No.6 of the complaint, the operation was conducted successfully and even the review check up was also made on 18-11-2016 and on 27-11-2016, there was a problem and she was admitted in Simhapuri Hospital at 7.10 p.m. and doctors tried their best to save her but in vain. As the complainant chosen another hospital and joined there at Nellore, they can not throw the blame on this opposite party, particularly when no such opinion was given by the said Simhapuri Hospitals against this 4th opposite party. Hence, this complaint against the 4th opposite party is not maintainable even as per facts of the complaint. The complainant himself admitted in para No.10 of the complaint that he gave written statement in writing to the enquiry officer along with the corrected hospital discharge summary and all other documents. When once such is the case of the complainant of taking amended discharge summary, he can not complaint against this opposite party. If really, there is any negligence on the part of this opposite party, it ought not give any such 2nd discharge summary as requested by the complainants brother. The complainant here also, suppressed the fact as to how he got the 2nd discharge summary. Hence, the complainant approached this Honble Court with a malafide intention and made wild allegations against it without any least fault on it. The opposite party No.4 submits that hence, there is no least truth in those allegations and this opposite party is no way concerned and responsible fore rejection of the claim. When it is the allegation of the complainant at the end of para No.7 of the complaint that the first opposite party sent a letter o repudiation of claim dt.27-01-2017 informing the claimant that said critical illness is not covered under the policy how the complainant made unnecessary allegations against this 4th opposite party and hence there is no basis for this complaint. The allegations mentioned in para No.13 of the complaint that there is lot of deficiency of service and also negligence o0n the part of opposite parties, the complainant suffered lot of mental agony and hardship and they are liable to pay compensation of Rs.3,50,000/- to the complainant are absolutely false and denied by this opposite party. The complainant failed to give as to how he arrived such a figure as compensation and when there is no deficiency of service on the part of this opposite party, the complaint is not at all maintainable at all. Repeating the sentences again and again, the complaint is filed with twisted and suppressed facts only to get the wrongful gain which practice is highly depreciable and this is a fit case to grant compensation to this 4th opposite party as there is no least truth against it and the opposite party No.4 submits for dismissal of the complaint with costs.
7. On behalf of the complainant, affidavit of PW1 filed and Exs.A1 to Ex.A15 were marked.
8. On behalf of the opposite party Nos.1, the affidavit of RW1 filed and Exs.B1 to B6 documents were marked.
9. On behalf of opposite party No.2, the affidavit of R.W.2 filed and no documents were marked.
10. On behalf of opposite party No.3, the affidavit of R.W.3 filed and Exs.B7 to B10 marked.
11. On behalf of opposite party No.4, the affidavit of R.W.4 filed and Exs.B11 to B14 marked.
12. Written arguments on behalf of the complainant, opposite party No.1, opposite party No.2 and opposite party No.4 filed.
13. Written arguments on behalf of the opposite party No.3 not filed.
14. Perused the written arguments filed on behalf of the complainant, opposite party No.1, opposite party No.2 and opposite party No.4.
15. Heard the arguments on behalf of the learned counsels for the both parties.
16. Now, the points for consideration are: (1) Whether this Forum has got jurisdiction to entertain the complaint against the opposite parties 1 to 4? (2) Whether the complaint filed by the complainant against the opposite parties
2 and 3 is maintainable? (3) Whether the complaint filed by the complainant against the opposite party No.4 is maintainable? (4) Whether the complaint filed by the complainant against the opposite party No.1 under Section-12 of the Consumer Protection Act, 1986 alleging deficiency of service is maintainable? (5) To what relief, the complainant is entitled?
17. POINT No.1: The learned counsel for the complainant submits by relying upon the evidence of P.W.1 and Exs.A1 to A15 that the wife of the complainant was availed home equity loan of Rs.12,49,993/- vide loan account No.613335413 and a personal loan of Rs.3,50,000/- vide loan account No.29502011948216000 from the opposite parties 2 and 3 and the wife of the complainant also taken insurance policies bearing No.2918200864232700 000 by paying a premium of Rs.49,993/- and she also taken another policy bearing No.2950201194821600000 for the period from 05-10-2015 to 04-10-2020 and she took treatment in the hospital of Dr.C.Bhakthavatsala Reddy and from there she took treatment in Star Hospitals, Hyderabad and after she was admitted in Sunshine Hospital, Secunderabad and after surgery, the wife of the complainant died and inspite of issuing of legal notice to the opposite parties 1 to 4 as the opposite parties 1 to 4 failed to pay the compensation amount. The complainant filed this complaint against the opposite parties 1 to 4 claiming compensation of Rs.19,86,288/- and submits to allow the complaint with costs. On the other hand the learned counsel for the opposite parties 1 to 4 submits that this Forum has no jurisdiction to entertain the complaint and hence the complaint filed by the complainant against the opposite parties 1 to 4 is not maintainable and submits for the dismissal of the complaint with costs. By relying upon the arguments submitted by the learned counsels for the both parties and as seen from the facts of the case, it is an admitted fact that the wife of the complainant namely Nukaraju Madhavi has taken Home Suraksha Plus and Sarv Suraksha policy and paid premium to the opposite party and after receiving the premium, the opposite party No.1 issued policies in the name of Nukaraju Madhavi as late Nukaraju Madhavi is a policy holder and as the policy holder pass away the complainant who is the husband of the said Nukaraju Madhavi who is a nominee and file the complaint against the opposite party No.1 for the insurance policy amount. In Jagdish Prasad Dagar Vs. Senior Divisional Manager, Life Insurance Corporation of India reported in 1992 (2) CPJ 493 (NC) (L.B.) Wherein the Honble National Commission held that nominee of policy holder is Consumer. Further as seen from the facts of the case, the opposite parties 2 and 3 facilitated to the wife of the complainant by collecting premium for obtaining policies from the opposite party No.1. In Standard Chartered Bank Limited Vs. B.N.Raman reported in 2006 (3) 1 CPJ (SC) = AIR 2006 SC 2810. Wherein the Honblel Apex Court held that Services of bank fall under the definition of service within the meaning of Section-2 (1) (o) of Consumer Protection Act. The opposite party No.4 provided treatment to the wife of the complainant for consideration after collection of the required fees towards the treatment of the wife of the complainant. In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi reported in (1999) 3 CPJ 36 = AIR 2000 SC 331. Wherein the Honble Apex Court held that beneficiary for whose benefit the services are hired or availed of, is a Consumer within the meaning of Section-2 (1) (d) (ii). By relying upon the above decisions as complainant is nominee and as the wife of the complainant is the policy holder of opposite party No.1 and as opposite parties 2 and 3 provided banking services at the time of taking policies and as the opposite party No.4 provided medical services for consideration, we are of the opinion that the complainant is a Consumer under Consumer Protection Act, 1986. By relying upon the above facts and decisions of the case, we answer this point in favour of the complainant and against the opposite parties 1 to 4.
18. POINT No.2 The complainant filed the complaint against the opposite parties 2 and 3 for alleging the deficiency of service on the part of the opposite parties 2 and 3 against the complainant but as seen from the facts of the case, the opposite parties 2 and 3 are only facilitator and hence the complaint filed by the complainant against the opposite parties 2 and 3 is not maintainable. In Andhra Bank Vs. Gampala Bharathi reported in 2014 III CPJ 465 (NC) and Wherein the Honble National Commission held that the complaint filed by the complainant against the facilitator bank is not maintainable. By relying upon the above decision and the facts of the case, we are of the opinion that the complaint filed by the complainant against the opposite parties 2 and 3 is not maintainable. In view of the above discussion we answer this point against the complainant and in favour of the opposite parties 2 and 3.
19. POINT No.3: The complainant filed the complaint against the opposite party No.4 alleging deficiency of service as the opposite party No.4 issued two discharge summaries mentioning the pre existing illness for the last two years in one discharge summary and another discharge summary does not have any pre existing illness and hence basing on the said Ex.A11 and B5 the claim of the complainant was rejected to saying that the deceased has suppressed the pre existing diseases and in view of the deficiency of service on the part of the opposite party No.4, the complaint filed by the complainant against opposite party No.4 claiming compensation. But as seen from the records one S. Haranth has admitted the Nukaraju Madhavi who is the wife of the complainant and on instructions the particulars of the wife of the complainant was noted later but said S. Haranath submitted Ex.B11 letter to the opposite party No.4 for rectification of the discharge summary and after obtaining Ex.B12 affidavit from the said S. Haranath the opposite party No.4 issued Ex.A14 discharge summary. As per Ex.B11 requisition and Ex.B12 affidavit, the said one S. Haranath gave particulars of the wife of the complainant and after receiving Ex.B11 and B12, the opposite party No.4 issued Ex.A14 discharge summary. As Ex.A11 was issued on information furnished by S. Haranath and later the requisition of the said S. Haranath again Ex.A14 was issued. In these circumstances as particulars noted in Ex.A11 is on the information given by Sri.S. Haranath nearly basing on the said Ex.A11 itself it cannot be possible to say that the opposite party No.4 has acted in a negligent manner. There is no allegation against the opposite party No.4 that the service provided by the opposite party No.4 is deficiency in service. In these circumstances basing on Ex.B14 and B12 alone, it cannot be possible to say that the opposite party No.4 has acted in a negligent manner. In view of the above said fact, we are of the opinion that there is no negligence on the part of the opposite party No.4 and hence the complaint filed by the complainant against the opposite party No.4 is not maintainable. In view of the above said discussion, we answer this point against the complainant and in favour of the opposite party No.4.
20. POINT No.4:The learned counsel for the complainant submits by relying upon the evidence of P.W.1 and Exs.A1 to A15 the wife of the complainant has taken Home Suraksha Plus policy and Sarv Suraksha policy and undergone surgery and died on 27-11-2016. During the course of Ex.A1 and A2 policy as the policy holder Smt Nukaraju Madhavi died and inspite of issuing of notice to the opposite party No.1 as the opposite party No.1 failed to pay the insurance amount, the complainant filed the complaint against the opposite parties to direct them for the payment of the insurance amount. On the other hand the learned counsel for the opposite party No.1 submits by relying upon the contents of Ex.A14 and Ex.B5 shows that as the policy holder namely Smt. Nukaraju Madhavi died due to chest pain and shortness of breath since two years and as the said Nukaraju Madhavi was suffered with pre existing disease as on the taking of Exs.A1 and A2 policies, the claim of the complainant was rejected on the suppression of facts and hence the policy is repudiated by the opposite party No.1 and submits for the dismissal of the complaint with costs. In view of the arguments submitted by the learned counsels for the both parties, the opposite party No.1 repudiated the policy and mentioned the reason in ex.A14 and Ex.B5 which reads as follows that : as per the Discharge Summary dated 20-10-2016, late Ms.Nukaraju Madhavi had complaints of chest pain and shortness of breath since two years and was diagnosed to be suffering from Subvalvar Aortic Stenosis. Whereas, the policy inception in this case is 05-10-2015. Hence, the condition is Pre existing disease and the same is excluded under the policy. Later on the request of S. Harnath and after taking notary, the opposite party No.4 issued Ex.A14 discharge summary which reads as follows: A 41 years old female patient presented with complaints of chest pain and shortness of breath since 9 months while exertion increased in intensity since 2 months, went to local hospital CAG was done on 10-02-2016 which revealed normal coronaries, patient diagnosed as CHD-Subaortic moderate aortic stenosis advised for surgery later patient admitted here for further evaluation and management. Basing on Ex.B5 and Ex.B6, the opposite party No.1 repudiated the claim of the complainant on the ground that the policy holder suppressed the pre existing disease. Even as seen from the contents of Ex.B5 late Ms. Nukaraju Madhavi has complaints of chest pain and shortness of breath since two years and was diagnosed to her suffering from subvalvar Aortic Stenosis but whether the complaint of late Nukaraju Madhavi will leads to say that the said Madhavi has suppressed the pre existing disease. The opposite party No.1 did not give any evidence to prove that the complainant has suppressed the pre existing disease and the complaint just noted in Ex.B5 is a disease which caused the death of the diseased and the nominee mentioning of said complaint is amounts to pre existing disease. In view of the above said fact even as per Ex.B4 and B5, it is mentioned that late Nukaraju Madhavi had complaint since two years. In Life Insurance Corporation of India Vs. Smt.G.M.Channabasamma reported in AIR 1991 SC 392. Wherein the Honble Apex Court held as follows that the burden of proof that the insured had taken any medical treatment or undergone surgical operation within the period of proceeding 12 months and fraudulently suppressed the same was on the insurer. In Satinder Singh Vs. National Insurance Company Limited reported in 2011 CTJ 379 (NC) and In Miss Abhitha Vs. Life Insurance Corporation of India reported in 2002 (3) CPJ 62 (NC) Wherein the Honble National Commission held that the burden is on insurer to show that the policy holder fraudulently suppressed the material facts about his health at the time of taking policy. In Oriental Insurance Company Limited Vs. Ch. Venkatesham reported in 2004 (11) CLD 275 (AP) Wherein the Honble High Court of Andhra Pradesh held as follows that burden of proof of establishing that there has been misrepresentation of facts and that the death of insured occurred on account of the result of the suppression of facts is on the insurer. If the insurer failed to examine the doctor who conducted kidney transplant to show on what basis it was mentioned in admission record that the patient was hypertensive, the burden was not tested. By relying upon the above decisions, the case of the complainant has to be examined. The opposite party No.1 filed Ex.B5, B6, B12, B14 to prove that the insured Smt.Nukaraju Madhavi was suffered with ailment and by suppressing the said fact, the wife of the complainant has obtained the policy from the opposite party. There is no convincing evidence that whether the shortness of breath will leads to further complications or not. The opposite party No.1 repudiated the policy basing on Ex.B5 that late Ms. Nukaraju Madhavi had complaint of chest pain and shortness of breath since two years and was diagnosed to be suffering from subvalveas Aortic Stenosis but the said inconvenience is not the cause of the death of the insurer. In LIC of India and others Vs. Kuchurlapati Krishna Kumari reported in 2007 (4) CPJ 9 (A.P.) Wherein the Honble Andhra Pradesh High Court held as follows that: the insurer repudiating the claim on the ground of suppression of the pre existing disease has to establish nexus between the diseased to have been suppression and the cause of death. Following the above decisions, we are of the opinion that as there is no nexus between the death and the cause of death, we are of the opinion that the complaint filed by the complainant has to be allowed. Further as seen from the records, the opposite party No.1 filed Ex.B5, Ex.B6, Ex.B12 and Ex.B14 in support of their contention as there is no nexus between the death of the insurer. The filing of Ex.B5, Ex.B6, Ex.B12, Ex.B14 will not in any way affect the claim of the complainant. By relying upon the above decisions as there is no nexus about the death of the diseased and the inconvenience shown in Ex.B5 and Ex.B6 is not amounts to suppression of the diseases and hence the repudiation of the policy by opposite party No.1 is not in accordance with Law and hence the complaint filed by the complainant against the opposite party No.1 has to be allowed. The complainant is claiming interest @ 18% p.a. on Rs.15,99,993/- from the date of claim i.e., from 03-01-2017 but as there is no stipulation of contract for payment of 18% p.a. we are of the opinion that directing the opposite party No.1 to pay the insurance amount of Rs.15,99,993/- with interest @ 12% p.a. on RS.15,99,993/- will meets the ends of justice and as interest was awarded on Rs.15,99,993/-, the claim of the complainant for compensation ofRs.3,50,000/- is hereby dismissed. By relying upon the above decisions and the discussion made above, we answer this point in favour of the complainant and against the opposite party No.1 only.
21. POINT No.5:In view of our answering on point No.1 in favour of the complainant and against the opposite parties 1 to 4, in view of our answering on point No.2 against the complainant and in favour of the opposite parties 2 and 3, in view of our answering on point No.3 against the complainant and in favour of opposite party No.4 and in view of our answering on point No.4 in favour of the complainant and against the opposite party No.1 only, the complaint filed by the complainant has to be allowed partly. In the result, the complaint is allowed partly and the opposite party No.1 only is directed to pay a sum of Rs.15,99,993/- (Rupees fifteen lakhs ninty nine thousand nine hundred and ninty three only) with interest @ 12% p.a. on Rs.15,99,993/- from the date of claim i.e., 03-01-2017 till the date of payment. The claim of the complainant for compensation of Rs.3,50,000/- is dismissed as interest was awarded on the claimed amount of Rs.15,99,993/-. The opposite party No.1 is also directed to pay a sum ofRs.5,000/- (Rupees five thousand only) towards the costs of the complaint to the complainant. The opposite party No.1 is directed to comply the order within 45 days on communication of the order. The claim of the complainant against the opposite parties 2 to 4 is dismissed without costs. Dictated to Stenographer, transcribed by her corrected and pronounced by us in the open Forum, this the 3rd day of APRIL, 2018. Sd/- Sd/- MEMBER PRESIDENT APPENDIX OF EVIDENCE Witnesses Examined for the complainant P.W.1 - 20-06-2017 Sri Suraparaju Karunakar, S/o.Pratap, Aged about 44 years, Private Service, Nellore-524 003 (affidavit filed). Witnesses Examined for the opposite parties R.W.1 - 18-07-2017 Sri S. Sanjaykumar, S/o.S.A. Shanmugham, Aged about 33 years, Working as Manager in HDFC ERGO General Insurance Company Limited, Cochin. (affidavit filed). R.W.2 - 24-07-2017 Sri S. Kumar, S/o.S. Ramesam, Aged about 50 years, Business Head of HDFC ERGO General Insurance Company Limited, Nellore (affidavit filed). R.W.3 - 28-06-2017 Sri Sai Kumar Varaganti, S/o.Nagendra Prasad, Aged
35 years, Working as Deputy Legal Manager in HDFC Bank, Nellore (affidavit filed). R.W.4 - 06-11-2017 Sri T. Pankaj Raj Yadav, S/o.T. Bhoj Raj Yadav, Aged about 40 years, Working as Manager in Sarvejana Health Care Private Limited (unit of Sunshine Hospitals) (affidavit filed). EXHIBITS MARKED FOR THE COMPLAINANT Ex.A1 - 27-09-2014 Photostat copy of insurance policy No.2918 2008 6423 2700 000. Ex.A2 - 05-10-2015 Photostat copy of insurance policy No.2950 2011 9482 1600 000. Ex.A3 - 27-01-2016 Photostat copy of 2D. ECHO Cardiogram report issued by Dr.C. Bhakthavatsala Reddy, Cardiac Care Centre, Nellore. Ex.A4 - --- Photostat copy of Discharge Summary, discharged on 11-02-2016 issued by the Star Hospitals, Hyderabad. Ex.A5 - --- Photostat copy of Discharge Summary submitted to State Government Employees Health Scheme by the opposite party No.4. Ex.A6 - 08-11-2016 Photostat copy of Discharge Summary issued by the opposite party No.4. Ex.A7 - 27-11-2016 Photostat copy of Medical Certificate of Cause of Death issued by the Simhapuri Hospital, Nellore. Ex.A8 - 03-01-2017 Photostat copy of letter from complainant to the opposite party No.1. Ex.A9 - 10-01-2017 Photostat copy of letter sent by the opposite party No.1. Ex.A10 - 13-01-2017 Photostat copy of repudiation letter for the policy Sarv suraksha. Ex.A11 - 18-01-2017 Photostat copy of letter from complainant to the opposite party No.1. Ex.A12 - 27-01-2017 Photostat copy of letter from opposite party No.1 to the complainant. Ex.A13 - 31-01-2017 Photostat copy of letter from complainant to the opposite party No.1. Ex.A14 - 06-02-2017 Photostat copy of letter alongwith the discharge summary. Ex.A15 - 14-12-2016 Death Certificate in favour of Nukaraju Madhavi died on 27-11-2016. EXHIBITS MARKED FOR THE OPPOSITE PARTIES Ex.B1 - --- Photostat copy of Sarv Suraksha policy bearing No.2950 2011 9482 1600 000. Ex.B2 - --- Photostat copy of Home Suraksha Plus policy bearing No.2918 2008 6423 2700 000. Ex.B3 - --- Photostat copy of Discharge Summary, discharged on 11-02-2016 issued by the Star Hospitals, Hyderabad. Ex.B4 - --- Photostat copy of Discharge Summary, discharged on 08-11-2016 issued by the Sunshine Hospitals, Hyderabad. Ex.B5 - 13-01-2017 Photostat copy of repudiation letter for the policy Sarv suraksha. Ex.B6 - 14-02-2017 Photostat copy of repudiation letter for the policy Sarv suraksha. Ex.B7 - --- Photostat copy of Loan Application Form in UAP No.1502164. Ex.B8 - --- Attested copy of Terms and Conditions applicable to Personal Loan details. Ex.B9 - --- Attested copy of Statement details from 28-09-2015 to 27-06-2017 issued by the opposite party No.3. Ex.B10 - 05-10-2015 Photostat copy of letter from opposite party No.1. Ex.B11 - --- Photostat copy of letter from S. Haranath to the opposite party No.4. Ex.B12 - 23-01-2017 Photostat copy of Affidavit of S. Haranath, S/o.S. Prathap. Ex.B13 - --- Photostat copy of Booklet about the Sunshine Hospitals. Ex.B14 - --- Photostat copy of Authorisation Letter given by Sunshine Hospitals. Id/- PRESIDENT Copies to:
1. Sri G. Babulu, Advocate, 16-2-227A, Pogathota, Nellore-524 001.
2. Sri D.V.R.Kiran Kumar, Advocate, D.No.25-9-336, Z.P.Colony, A.K.Nagar, Nellore-524 004.
3. Sri P. Ramadandu, Advocate, Nellore.
4. Sri A. Nagendra Sai, Advocate, Nellore.
5. Sri V. Sankara Narayna, Advocate, D.No.23/1217/1, Sodhan Nagar, Nellore-524 003 (A.P.) Date when free copy was issued: