BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 12th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
SMT. SHARADAMMA H.G : HON’BLE MEMBER
ORDER IN
C.C.No.304/2012
(Admitted on 21.09.2012)
1. Mrs. Yogeshwari Hegde,
W/o late K. Ramesh Hegde,
2. Miss Akshatha Hegde,
D/o Late Ramesh Hegde
3. Miss. Ranjith Hegde,
D/o Late Ramesh Hegde
The complainants are the residents of
Kotebagilu, Marpady Village,
Moodabidri, Mangalore Taluk.
….. COMPLAINANTS
(Advocate for the Complainants: Sri DS)
VERSUS
1. Authorised Signatory,
The Branch Manager,
Syndicate Bank,
Branch Office, Moodabidri,
Karkala Taluk.
2. Authorised Signatory,
United India Insurance Company
Limited, P.I.No.29, A.S Road,
Srinivas Complex,
Karkala 574 104.
…........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri MSKP)
(Advocate for the Opposite Party No.2: Sri DRK)
ORDER DELIVERED BY HON’BLE MEMBER
SRI. T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party No.1 to return all the documents along with statement of account, loan account closure letter, No due certificate, No Objection to cancel entry regarding mortgage records like R.T.C. Khata and to pay a sum of Rs. 50,000/ towards the solatium for mental harassment.
2. In support of the above complainant Mrs. Yogeshwari Hegde filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked as Ex.C1 to C10 detailed in the annexure here below. On behalf of the opposite party Mr. Amar Kumar Sinha (RW1) Divisional Manager also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. We conceived the dispute is with regard to the housing loan taken by the complainant’s husband and an insurance policy called UNI HOME CARE POLICY also taken, but on the death of the borrower the Opposite party no 1 refused to close the loan Account and return the documents given as security. The complainant alleges that her husband deceased insured had availed a housing loan from the opposite party no 1and the opposite party no 1 has taken an insurance policy called UNI HOME CARE POLICY to take care of the housing loan. The complainant alleges that it was appraised to the deceased insured by the opposite party no 1 that the bank had extended insurance policy coverage on the loan availed and also on his life at the time he had obtained insurance coverage from the opposite party no 2. Her husband died of heart attack on 23.05.2011. On approaching the opposite party no 1 and requesting to close the loan account and return of the documents as there was coverage of insurance for the loan obtained, the opposite party no 1 refused and stated that the opposite party no 2 repudiated the policy on the ground that the policy terms do not cover the cause of the accident. Hence there is deficiency in service on the part of the opposite party no 1 and 2. Hence the complainant prays the relief of return of documents given on barrowing of loan and other relief against the opposite party no 1 only. The opposite party no 1 denies the liability and the deficiency in service from their part and states that the insurance policy taken from the opposite party no 2 and the whatever the contract of insurance under the UNI HOME CARE POLICY is between the opposite party no 2 and the complainant. Also states that they have not appraised or promised any insurance on the life of the deceased insured and made the deceased insured to believe that there is insurance on the life of the borrower. The opposite party no 2 contends that the death by heart attack is not covered under the policy as it is not an accident by external, visible element and hence repudiation is proper and as per policy condition and there is no deficiency in service on their part. These being the facts we are of the opinion in resolving this dispute we deem fit the following
POINTS FOR ADJUDICATION
On perusal of the evidence on record and the documents produced by the parties the admitted facts are, the borrowing of Loan from the Opposite party 1 by the first complainant’s husband and the UNI HOME CARE POLICY taken in the name of the first complainant’s husband in pursuant of the loan borrowed. The first complainant’s husband died of heart attack in UAE pending clearance of loan. It is also admitted fact that the UNI HOME CARE POLICY was repudiated on the ground that the policy condition do not cover the cause of accident by the opposite party no 2. It is denied by the Opposite party no 1 that, he has appraised the deceased insured that there is coverage of life of the deceased insured in the UNI HOME CARE POLICY and it is denied that there is legally recognized procedure of the insurance coverage it is stringently required of the Opposite party no 1 to have extended insurance coverage to the properties of the deceased insured and on the life of the person borrowing the loan. The opposite party no 1 denies the liability on their part. The opposite party no 2 denies their liability as the repudiation is proper. On conciliation of the admissions and the denial we are of the opinion the adjudication of the following points will help in resolving this complaint.
- Whether the complainant is a consumer under Consumer Protection Act 1986?
- Whether the complainant proves deficiency in service against the opposite party no 1?
- Whether the complainant entitled for the relief claimed.
- What order?
We have considered the evidence produced and the documents on file. Notes of the arguments and submissions taken notice of and adjudicated and answered the above points as under:
- In the affirmative.
- In the negative.
- In the negative.
- As per final order.
REASON
POINT NO 1: There is no denial from the opposite parties that the deceased insured was a consumer of them. There is no denial of the relationship of the complainant with the deceased insured as wife and the husband. Hence on the death of the deceased insured the wife and the children of the deceased insured the complainants herein have become the consumers by application of law. Hence we answered the point no 1 in the affirmative.
POINT NO 2 & 3: The complainant’s line of contention is that the opposite party no 1 the banker who has lend the loan, at the time of borrowing appraised to the deceased insured that, the bank had
extended insurance policy coverage on the loan availed and on his life at the time he had obtained insurance coverage from the opposite party no 2. And that there is legally recognized procedure of the insurance coverage that, it is stringently required of the Opposite party no 1 to have extended insurance coverage to the properties of the deceased insured and on the life of the person borrowing the loan. Her husband died of heart attack and it is the opposite party no 1 responsibility to close the loan account and return the documents as there is insurance coverage for the loan and the life of the deceased insured. It is not the case of the complainant that, the death due to heart attack is also covered under the policy or the heart attack is also an accident. It is admitted by inference that the complainant is not disputing the policy condition. It is pertinent to note that the policy is in the name of the deceased insured K. Ramesh Hegde and the same has been produced by the complainant as EX C1. However in one line complainant alleges in para 10 of the complaint that the opposite party no 2 has miserably failed to explain the exclusion clauses of to the insured as required to be stringently explained to the insured by the insurer and as such the exclusion clause is not binding on the insured. Hence it is the complaint to prove his case and the point no 2 taken for adjudication.
2. The contention of the complainant that the opposite party no 2
not explained the exclusion clause to the deceased insured is not acceptable on three grounds. First, the opposite party no 2 repudiated on the ground that, the cause of death i.e. heart attack is not an accidental and the policy covers only death due to personal accident as explained in section II of the policy as accident caused by external, violent, and visible means. The heart attack is not the result of any accident as such the cause of accident not covered. It is clear that the repudiation is not on the ground of exclusion clause as contended by the complainant. Secondly on examination of the exclusion clause nothing is mentioned about the element of heart attack and as such explaining of the exclusion clause has nothing to do with the case of the complainant. Thirdly the policy was taken at the time of the loan was borrowed by the time when the first complainant’s husband alive and it is not possible now whether the exclusion clause is explained or not. Also it is to be noted that there is no any claim against the opposite party No 2 by the complainant.
3. The allegation against the opposite party no 1 is concern, it is only an oral submission by the complainant that the opposite party no 1 has promised and made to believe that the policy covers the life of the borrower as well. There are no any documents submitted to prove his case. Also the borrower deceased insured is no more to state whether there is any such promise or not. The other contention that there is legally recognized procedure of the insurance coverage that, it is stringently required of the Opposite party no 1 to have extended insurance coverage to the properties of the deceased insured and on the life of the person borrowing the loan is without leg to stand. No legal authority produced in proving this contention.
We also are of opinion that the insurance policy UNI HOME CARE POLICY produced by the complainant which is provided by the opposite parties do not depict any one of the terms or condition that it covers the life of the borrower. It specifically stated in the Section II of the policy that in the instance of the death due to personal accident the insurer will be liable to pay the capital sum assured. The complainant is entitled for return of the documents from the opposite party no 1 only after the loan is cleared. As per statements of account it is evident that the loan is still pending in the name of the deceased insured. Hence the opposite party no 1 is not liable to return the documents and as such there is no deficiency in service on the part of the opposite party no 1 and the complainant not proved deficiency in service from the part of the opposite party No 1. Hence we answered the point no 2 in the negative and as such the point no 3 also in the negative.
POINT NO 4: In the light of the above discussion and adjudication of the points we passed the following
ORDER
The complainant is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 12th January 2017)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
MEMBER
(SMT. SHARADAMMA H.G)
D.K. District Consumer Forum
Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mrs. Yogeshwari Hegde
Documents marked on behalf of the Complainants:
ExC1: Policy
ExC2: Death Certificate dated 26.05.2011
ExC3: Statement
Ex.C4: Accident Claim Communication
Ex.C5: Personal Accident Insurance medical report
Ex.C6: Death Certificate dated 25.05.2011
Ex.C7: Letter dated 25.03.2011
Ex.C8: Death Certificate dated 26.5.2011
Ex.C9: Communication dated 20.4.2012
Ex.C10: Legal Notice dated 16.4.2012
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Amar Kumar Sinha (RW1) Divisional Manager
Documents produced on behalf of the Opposite Parties:
Nil
Dated: 12.01.2017 MEMBER
