This C.C. is coming on before this Forum for final hearing in the presence of Sri.M.Hanumantha Rao and Sri.R.Venkat, Advocates, Khammam for complainant; Sri.N.L.Srinivas, Authorised person of opposite party No.3; notice of opposite parties 1 and 2 served and called absent; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:-
ORDER
(Per Sri.Vijay Kumar, President)
This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the father of complainant by name late Eluru Narayana has purchased the brand new Mahindra & Mahindra 275 DI Bhoomi Putra Tractor on 29-7-2009 in Mahindra & Mahindra show room at Khammam and he obtained the finance loan to a sum of Rs.3,00,000/- for the said tractor with the opposite party No.3, by expressing his willingness to avail the facility of Kotak Kisan Suraksha Scheme which covers the risk for making free from the remaining outstanding of loan in the event of death of owner of vehicle and he got it insured with the opposite party No.2 by paying a premium of Rs.5,212/- for risk covering of the loan amount under protection of Kotak Mahindra Bank Limited in Kotak Kisan Suraksha. The complainant and one Nunna Ravi Kumar stood as guarantors for the finance loan from opposite party No.3, the complainant also constrained to give the blank cheques to the opposite party No.3. After obtaining signatures on several papers and blank papers, both the opposite parties 2 and 3 together informed the complainant and his father that the loan was protected with the kotak kisan suraksha scheme and in the event of death of the father of the complainant, the remaining loan installments will be dissolved, then the complainant and his father were under the impression that the loan was covered under the kotak kisan suraksha scheme. Further the opposite party No.2 collected an amount of Rs.5,212/- for the purpose of kotak kisan suraksha scheme, and opposite party No.3 got issued the RC book of the scheduled tractor under the registration No.AP 20 AA 8466, with an endorsement that the scheduled tractor is under the hypothecation of the opposite party No.3. The father of complainant was running the scheduled tractor for his agricultural operations and paid first installment.
2. On 7-10-2009 the father of the complainant died due to cerebral hemorrahage, after his demise, the complainant has obtained the death certificate and intimated the same to the opposite party No.2 to cover the risk of the remaining installments pending with opposite party No.3 and requested the opposite parties to dissolve the remaining installments of the loan obtained by the father of the complainant for purchasing the scheduled tractor and requested the opposite parties to implement the policy benefits and to issue the clearance certificate of the finance loan. Surprisingly, opposite party No.2 has intimated that the scheduled tractor is in the name of the father of the complainant and the insurance was made in the name of complainant, further informed that the vehicle would be free from the loan, when the complainant died without paying installments. In fact, the complainant and one Nunna Ravi kumar stood as guarantors for the loan for the purpose of purchasing the scheduled tractor by the father of the complainant. The opposite party No.2 created an instant certificate of cover after demise of the father of the complainant, without date, vide certificate No.TPE-17974, fabricated on the name of Eluri Srinivasa Rao, s/o.Venkataiah, whereas the father of the complainant is Narayana, after noticing the mistake with regard the father’s name of the complainant, the opposite party No.2 has fabricated another certificate of cover vide the certificate No.TFE-41261 on the name of complainant and the opposite parties have used these certificates of cover as shields for the risk covering of the loan of the scheduled tractor and they are representing that the complainant is not entitled for the benefit of Kotak Kisan Suraksha scheme. While the matter stood thus, on 19-5-2010 the opposite parties have got issued the notice to the complainant demanding to pay the installments, after receipt of the said notice, the complainant approached the opposite parties and enquired about the issuance of said notice, upon which the opposite parties were dodging the matter under one pretext or other and being the illiterate and innocent, the complainant was wandering around the opposite parties. Opposite party No.3 tried to seize the tractor by denying the eligibility of the insurance protection to the tractor with a reason that the complainant committed default of the loan installments, the complainant reminded about the existence of loan insurance, inspite of the same the opposite party No.3 went away by threatening the complainant with dire consequences.
3. It is further submitted by the complainant that as per the version of opposite parties, if the loan was issued in favour of the complainant, how the tractor was registered on the name of the father of the complainant and how the RC book was endorsed that the scheduled tractor was hypothecated under the opposite party No.1, if really opposite party No.3 granted the loan to the complainant, they ought to take steps to get realized the money from the complainant, but shall not touch the scheduled tractor, as the same is exclusively belonged to the father of the complainant or in the event of granting the finance loan to the father of the complainant by accepting the sureties of the complainant and one Nunna Ravi Kumar, the opposite parties must have given the same to the father of the complainant only and when they collected Rs.5,212/- towards the premium of insurance coverage under Kotak Kisan Suraksha scheme, it must be applied to the borrower who is the registered owner of the scheduled tractor only. But the oppsoite parties are adopting the double standards by denying the eligibility of the insurance coverage of the complainant and making hectic efforts to seize the scheduled tractor from the complainant. If the opposite party No.3 succeeds in his efforts, the complainant and his family will be put an irreparable loss and injury. Hence, this complaint.
4. Apart from the complaint, the complainant also filed his affidavit.
5. On receipt of the notice, opposite parties 1 and 2 neither appeared nor filed counter.
6. During the pendency of the case, the complainant filed an I.A.82/2010 praying the Forum to implead the Manager, M/s.Kotak Mahindra Bank Limited, D.No.40-10-48/1, M.G.Road, Labbipet, Vijayawada as opposite party No.3 to this proceedings. Upon hearing the arguments on both sides, the petition is allowed, Manager, M/s.Kotak Mahindra Bank Limited, is added as opposite party No.3 to these proceedings.
7. On receipt of the notice, opposite party No.3 appeared through Sri.N.L.Srinivas, authorized person, Kotak Mahindra Bank Ltd., Vijayawada, filed their version, denied the averments made in the complainant and submitted that the complainant and his father availed loan from this opposite party No.3 for purchasing the vehicle on the guarantee of the Nunna Ravi Kumar, while availing the loan the borrowers have an option to take insurance scheme under Kotak Kisan Suraksha scheme that the father of complainant was aged about 66 years as on the date and therefore he is ineligible to take insurance policy under Kotak Kisan Suraksha scheme due to his old age, the borrowers expressed their intention to take insurance policy in the name of the 2nd borrower i.e. in the name of complainant to avail the scheme and benefits of Kotak Kisan Suraksha. As per the guidelines of their Head Office in case of joint borrowers, furnishing insurance policy either of the names of borrowers sufficient and acceptable, admittedly the 1st borrower is ineligible to take insurance policy due to his age, so the borrowers submitted the insurance policy in the name of the complainant i.e. in the name of the co-borrower named Eluri Srinivasa Rao, the borrowers can avail the benefits of the Kotak Kisan Suraksha scheme and policy from insurance company only on the demise of the person on whose name the policy stands, admittedly the policy stands in the name of the complainant and as he is living person, the borrowers are not entitled to get the benefits of Kotak Kisan Scheme.
8. The opposite party No.3 denied that they took signatures of the borrowers on several papers and blank papers, the complainant and his guarantor signed on all loan documents after duly filling and after due verification, further denied that this opposite party took blank cheques from the borrowers. The opposite party No.3 submitted that the borrowers were paying installments in cash only, so taking blank cheques does not arise, after demise of 1st borrower and after repeated demands made by this opposite party No.3, the complainant issued a cheque to this opposite party for Rs.1,13,974/- drawn on Andhra Bank towards the discharge of the amount due to it, he has failed to honour the cheque and this opposite party has filed a case under N.I. Act, on the file of IACMM court at Vijayawada, after receipt of the summons and filing of vakalath on behalf of the complainant only, he brought this case before the Hon’ble Forum as a counter blast.
9. It is submitted by the opposite party No.3 that the complainant availed the loan as co-obligant along with his father and claimed that the borrower did not sign on guaranty agreement along with guarantor, making signatures along with his father leads to show that the complainant is co-obligant, but not as a guarantor. At the time of purchasing the vehicle from company, the complaint took insurance in his name for the vehicle from Bajaj insurance and its cover note bearing No.BZ0801110220, later this opposite party came to know that the vehicle met with accident and complainant claimed the amount and got the benefits from the same insurance company for himself as the owner of the said vehicle, thereafter the complainant created and fabricated another cover note for the said vehicle insured in the name of his father and availed loan from this opposite party, by submitting those fake and fabricated insurance cover note to this opposite party, insurance policy and number of cover note in the name of complainant is with same number and insurance policy in the name of his father. As per the guidelines of IRDA, issuance of two insurance policy cover notes for the same time and period in the name of two persons for only one vehicle, the same happened in this case. The complainant and his father availed loan for an amount of Rs.3,35,212/- from this opposite party, but not Rs.3,00,000/- as mentioned in the complaint and affidavit filed by the complainant, as the complainant and his father availed the loan and as Kotak Kisan Scheme insurance benefit is not available, the complainant is bound and liable to pay the outstanding amounts, due to this opposite party. It is submitted by the opposite party No.3 that the rectification of mistake regarding the name of the father of complainant in the cover note itself shows that the complainant has full knowledge about the facts. It is further submitted by the opposite party No.3 that in the absence of insurance company as a party to these proceedings, the complaint between these parties will not be decided fully and finally, as such insurance company is a necessary party to these proceedings.
10. It is further submitted by the opposite party No.3 that the complainant submitted a fake and fabricated R.C. and obtained insurance policy on the vehicle for the period from 29-12-2009 to 28-12-2010 in the name of his father, production of cover note/ policy bond is absolutely necessary as it would reveal the callous intention of the complainant, the opposite party No.3 addressed several letters demanding to pay the amount and complainant intentionally got returned the same. Hence, the opposite party No.3 prays to dismiss the complaint.
11. Apart from the counter, on behalf of the opposite party No.3, Authorised person himself filed his chief affidavit.
12. Along with the complaint, the complainant also filed the following documents and the same were marked as Exs.A.1 to A.6.
Ex.A.1 - Attested copy of Registration certificate of Tractor
LMV Non transport vide registration No.AP 20 AA 8466
Ex.A.2 - Attested copy of Certificate of cover No.TPE17974
Ex.A.3 - Attested copy of Certificate of cover No.TFE41261
Ex.A.4 - Attested copy of death certificate of Eluri Narayana
Ex.A.5 - Attested copy of Ration card
Ex.A.6 - Attested copy of Legal notice, dt.19-5-2010
13. On behalf of the opposite party No.3, the following documents were filed and marked as Exs.B.1 to B.18
Ex.B.1 - Copy of Loan Application bearing No.39233 (4 pages)
Ex.B.2 - copy of Loan cum guarantee agreement
Ex.B.3 - copy of Quotation/proforma invoice, dt.29-12-2008
Ex.B.4 - copy of Invoice containing hypothecation in favour of
opposite party No.3.
Ex.B5 - copy of Payment receipt issued by dealer in favour of
borrowers
Ex.B.6 - copy of identity cards of borrowers issued by VRO,
Rajeswarapuram village, Nelakondapalli Mandal,
Khammam District.
Ex.B.7 - copy of election identity card of borrower,
Eluri Narayana.
Ex.B.8 - Copy of Insurance Calculation along with the prescribed
table chart, dt.30-12-2008.
Ex.B.9 - Copy of Good Health Declaration form signed by the
complainant/ co borrower
Ex.B.10 - office copy of demand notice
Ex.B.11 - copy of Notice issued by complainant/ co-borrower
through his counsel along with postal receipt.
Ex.B.12 - copy of Reply notice issued by the opposite party No.3
Ex.B.13 - copy of Certificate of Registration containing
Hypothecation with opposite party No.3
Ex.B.14 - copy of vehicle registration of RTO extract containing
Hypothecation with opposite party No.3.
Ex.B.15 - copy of insurance policy cover note without
hypothecation.
Ex.B.16 - copy of insurance policy cover Note No.BZ0801110220
in the name of Eluri Narayana showing hypothecation
with opposite party No.3.
Ex.B.17 -copy of insurance policy cover note No.BZ0801110220
in the name of Eluri Srinivasa Rao.
Ex.B.18 - copy of Accepted commitment letter given by the
complainant/ co borrower with dealer admitting to
discharge the liability as co borrower.
14. Both the complainant and opposite party No.3 filed written arguments and submitted oral arguments.
15. Upon perusing the material papers on record and upon hearing the arguments, now the points that arose for consideration are,
1. Whether there was any deficiency of service on the part
of any of the opposite parties as alleged by the complainant?
2. To what relief?
Point No.1:
16. The case of the complainant is that the father of the complainant had purchased tractor on 29-7-2009 and obtained the loan to a sum of Rs.3,00,000/- with the opposite party No.3 by expressing his willingness to avail the facility of Kotak Kisan Suraksha scheme and he got it insured for risk covering of the loan amount under protection of Kotak Mahindra Bank Limited. As per the complainant, himself and one Nunna Ravi Kumar stood as guarantors for the finance loan from opposite party No.3. On 7-10-2009 the father of the complainant died and immediately the complainant intimated the same to opposite party No.2 to cover the risk of remaining installments pending with opposite party No.3 and requested to dissolve the remaining installments of the loan amount obtained by his father. The opposite party No.2 intimated that the insurance was made in the name of the complainant, further informed that the vehicle will be free from the loan in the event of death of complainant only. On 19-5-2010 the opposite party No.3 got issued notice to the complainant demanding to pay the installments and opposite party No.3 tried to seize the tractor from the complainant, the complainant approached the forum for redressal.
17. On going carefully through the record, we observed that there is no dispute with regard to the purchase of tractor and availing loan from the opposite party No.3 by the father of the complainant. As per the contention of the complainant, the complainant himself and one Nunna Ravi Kumar stood as guarantors for the loan taken from opposite party No.3 and also the father of the complainant expressed his willingness to avail the facility of Kotak Kisan Suraksha scheme which covers the risk for making free from the remaining outstanding loan amount in the event of death of owner of the vehicle. For that the father of the complainant got insured with opposite party No.2 by paying an amount of Rs.5,212/- and after the death of the father of the complainant, the opposite parties failed to receive the insurance premium and making efforts to seize the tractor from the complainant.
18. As per the opposite party No.3, the complainant and his father availed loan as co-borrowers and one Nunna Ravi Kumar stood as guarantor, while availing loan, the borrowers have an option to take insurance as the father of the complainant was aged about 66 years as on the date, therefore, he is ineligible to take insurance policy under Kotak Kisan Suraksha Scheme due to his old age. The borrowers have expressed their intention to take insurance policy in the name of co-borrower i.e. in the name of the complainant. As per their guidelines, the opposite party No.2 issued a policy in the name of the complainant.
19. To support their contention, the opposite party No.3 filed photocopy of loan cum guarantee agreement (Ex.B.2), photocopy of insurance calculation along with the prescribed chart (Ex.B.8) and photocopy of Good health declaration form signed by the complainant (Ex.B.9). The complainant in his entire complaint submitted that he stood as guarantor for the loan amounts obtained by his father from the opposite party No.3. But as per the loan cum guarantee agreement (Ex.B.2) he stood as co-borrower, as such the contention as pleaded by the complainant goes against his own plea and also as per the insurance calculation (Ex.B.8), the payment was made in the name of complainant, for that the complainant produced good health declaration form of his own (Ex.B.9) to the opposite party No.3 on 30-12-2008. The documents on record go to show that the insurance agreement issued in favour of the complainant as co-borrower as such the insurance company cannot be held liable to dissolve the loan amount on the death of the father of the complainant and also all the documents clearly go to show that the Kotak Kisan suraksha scheme policy was issued in the name of the complainant.
20. From the material available on record, we observed that the father of the complainant was not having any insurance policy and the policy under kotak kisan suraksha scheme was issued in the name of complainant by the opposite party No.2. Therefore, the insurance company has rightly repudiated the claim of the complainant. In view of the aforesaid reasons, the complaint is liable to be dismissed.
Point No.2:
21. In the result, the complaint is dismissed.
Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this the 17th day of March, 2011.
PRESIDENT MEMBER
DISTRICT CONSUMERS FORUM
KHAMMAM
APPENDIX OF EVIDENCE
Witnesses examined for complainants:
-None-
Witnesses examined for opposite party No.3
-None-
Exhibits marked for complainants:
Ex.A.1 - Attested copy of Registration certificate of Tractor
LMV Non transport vide registration No.AP 20 AA 8466
Ex.A.2 - Attested copy of Certificate of cover No.TPE17974
Ex.A.3 - Attested copy of Certificate of cover No.TFE41261
Ex.A.4 - Attested copy of death certificate of Eluri Narayana
Ex.A.5 - Attested copy of Ration card
Ex.A.6 - Attested copy of Legal notice, dt.19-5-2010
Exhibits marked for opposite party No.3:
Ex.B.1 - Copy of Loan Application bearing No.39233 (4 pages)
Ex.B.2 - copy of Loan cum guarantee agreement
Ex.B.3 - copy of Quotation/proforma invoice, dt.29-12-2008
Ex.B.4 - copy of Invoice containing hypothecation in favour of
opposite party No.3.
Ex.B5 - copy of Payment receipt issued by dealer in favour of
borrowers
Ex.B.6 - copy of identity cards of borrowers issued by VRO,
Rajeswarapuram village, Nelakondapalli Mandal,
Khammam District.
Ex.B.7 - copy of election identity card of borrower,
Eluri Narayana.
Ex.B.8 - Copy of Insurance Calculation along with the prescribed
table chart, dt.30-12-2008.
Ex.B.9 - Copy of Good Health Declaration form signed by the
complainant/ co borrower
Ex.B.10 - office copy of demand notice
Ex.B.11 - copy of Notice issued by complainant/ co-borrower
through his counsel along with postal receipt.
Ex.B.12 - copy of Reply notice issued by the opposite party No.3
Ex.B.13 - copy of Certificate of Registration containing
Hypothecation with opposite party No.3
Ex.B.14 - copy of vehicle registration of RTO extract containing
Hypothecation with opposite party No.3.
Ex.B.15 - copy of insurance policy cover note without
hypothecation.
Ex.B.16 - copy of insurance policy cover Note No.BZ0801110220
in the name of Eluri Narayana showing hypothecation
with opposite party No.3.
Ex.B.17 -copy of insurance policy cover note No.BZ0801110220
in the name of Eluri Srinivasa Rao.
Ex.B.18 - copy of Accepted commitment letter given by the
complainant/ co borrower with dealer admitting to
discharge the liability as co borrower.
PRESIDENT MEMBER
DISTRICT CONSUMERS FORUM
KHAMMAM
