KUNDAN KUMAR KUMAI

This is an appeal preferred under Section 41 of the Consumer Protection Act 2019, against the ex-parte order, passed by the Ld. DCDRC, Coochbehar in CC No. 25 of 2022.

Brief facts of the appellant case are that, the respondent being the legal heirs of the deceased Makbul Hussain, with the respondent no. 1 and 2 being the co-borrowers of the loan, granted by the appellant bank, against loan account no. 3516210180000004, amounting to Rs. 12,00,000/-, for 72 months with EMI of Rs. 21,622/- with processing fees Rs. 35,400/- LIC premium Rs. 41,984.40 and CFRSA charges of Rs. 118/-. As per the terms and conditions, the respondents paid EMI, but unfortunately borrower Makbul Hussain died on 14/07/2020 due to illness.

After the death of the main borrower, the respondent no. 1 submitted death certificate to the appellant bank and claimed the life insurance of the deceased Makbul Hussain and the appellant bank assured that the insurance claim would be disbursed in the loan account, but till date, the appellant bank had failed to do so. On the other hand, the appellant bank illegally and unauthorizedly, refunded life insurance premium of the deceased amounting to Rs. 41,984.40, to the account no. 3516110060051674 on 25/09/2020. The appellant bank despite receiving the insurance premium, did not deposit the same to any insurance company. Even the loan agreement Col no. 4.18 clause no. (iv), clearly stated that the loan amount would be set off by deducting from the premium amount.

Due to such none disbursement of the insurance claim, the respondent no. 1 sent one RTI dated 04/04/2022, but till date the appellant bank did not supply the answers and subsequently, all the respondents issued a legal notice dated 05/04/2022. Finding no other alternative, the respondents filed this instant claim along with the prayers.

The appellant bank had received the summons on 10/06/2022, but as they did not appear on 04/07/2022, the case had been fixed for ex-parte hearing on 27/07/2022 and the appellant bank had been barred from filing WV.

After examining, the respondent no. 2 and on hearing the argument, the Ld. DCDRC, Coochbehar, passed the ex-parte order directing the appellant bank to pay life insurance company amounting to Rs. 12,00,000/- and after adjusting the loan amount to issue NOC in favour of the respondents and further directed, the appellant bank to pay Rs. 5,00,000/- for deficiency in service as well as mental pain and agony and Rs. 20,000/- towards cost of proceedings within 30 days from the date of passing of the order, failing which interest @6% would be awarded upon the awarded amount.

Being aggrieved by the above order, the appellant bank preferred this appeal on the ground, that the loan amounting to Rs. 12,00,000/- had been sanctioned to the Late. Makbul Hussain vide sanction letter dated 26/06/2019. The Late. Makbul Hussain, in order to secure himself and the respondents, had opted for life insurance coverage from HDFC Life and had deposited total amount Rs. 41,984.40 and as per the terms and agreements, the Late Makbul Hussain was required to tender himself for medical examination, but as he failed to do so, the proposed insurance policy of Rs. 12,00,000/- got rejected and the late Makbul Hussain had been duly communicated vide a letter with necessary remarks of an initiation of refund amount of Rs. 41,984.40 dated 07/05/2020, which ultimately got credited in to the savings bank account no. 3516110060051674 on 26/09/2020. Thereafter, as the loan account no. 3516210180000004, became NPA on 30/01/2021 and consequently, on 27/09/2021,one demand notice amounting to Rs. 13,28,999.91 had been issued upon the respondents under section 13 (2) of the SARFAESI Act. And symbolic possession under section 13(4) SARFAESI Act had been taken. In order to avoid, their liabilities, the respondents had filed this instant case. Hence for the above reasons, the HDFC Life became a necessary party and the non-inclusion, made the impugned judgment erroneous, both in law and fact.

Decision with reason

At the time of final hearing, Ld. advocate for the appellant had submitted, that it was admitted, that the loan amounting to Rs. 12,00,000/- had been sanctioned to the Late Makbul Hussain, but as the said amount had been covered under the life insurance policy from HDFC Life and as the Late Makbul Hussain had not submitted himself, for medical examination, the policy had been rejected and therefore, the loan was not covered under any insurance policy and the respondent had been liable for re-payment. But as the appellant had been barred from filing WV before the Ld. Commission below, the above facts could not be placed and at the same time no appeal could be preferred in view of the judgment passed by the Hon’ble Supreme Court in Rajeev Hitendra Pathak and Ors Vs. Achyut Kashinath Karekar and Anr, on 19/08/2011. He therefore, prayed for setting aside the impugned judgment.

Ld. Advocate for the respondents on the other hand had submitted, that the appellant had introduced new facts, which could not be considered by this Commission, in view of the judgment passed by the Hon’ble Supreme Court on 22/02/2000 in Modern Insulators Ltd. Vs. Oriental Insurance Company Ltd. He had further relied in the judgment passed in SBI Life insurance company Ltd. Vs. Asha Dixit and Anr passed by the Hon’ble NCDRC, on 10/12/2010, for preventing the appellant bank from recovering, the outstanding loan amount and in the judgment passed by the Hon’ble supreme Court  in India on 05/11/1993, in Lucknow Development Authority Vs. MK Gupta, for additional compensation and in the judgment passed by the Hon’ble Supreme Court  of India on 08/08/2022, in Arun Bhatiya Vs. HDFC Bank and Others for being treated as a Consumer and also in Canara Bank Vs. United India Insurance Company Ltd. and Others by the Hon’ble Supreme Court on 06/02/2020.

It is not disputed, that the impugned judgment is an ex-parte judgment, when the appellant failed to appear despite receiving summons, but as the powers of this commission is also curtailed, in view of the judgment, passed by the Hon’ble Supreme Court in Rajeev Hitendra Pathak and Ors  Vs. Achyut Kashinath Karekar and Anr, on 19/08/2011, the appellant was left with no option, but to prefer the instant appeal against the ex-parte judgment. Under the circumstance, the case made out by the appellant, including new facts, again could not be entertained at this forum, in view of the judgment passed by the Hon’ble Supreme Court on 22/02/2000 in Modern Insulators Ltd. Vs. Oriental Insurance Company Ltd., as they were prevented from doing so before the Ld. Commission below. But, as the new facts introduced at this stage, needs to be tested before the Ld. Lower Commission, to arrive at a just decision, also needs to be respected, although at the cost of the consumer/respondents. Therefore, the best option would be to remand the case to the Ld. Commission below, for a fresh trial. At this stage, in view of the new facts, introduced by the appellant, the HDFC Life also becomes a necessary party and the respondents would do well by adding them as party to the case, for a fresh trial.

 Hence the instant appeal succeeds.

It is therefore,

Ordered

That the instant appeal be and the same is allowed on contest but with costs of Rs. 5000/- (Five thousand) only, to be payable to the respondents, by the appellant.

The impugned order is set aside and the respondents are at liberty to add HDFC Life, as a party, with the details to be provided by the appellant and the Ld. Commission below is directed to accept the written version, to be filed by the appellant within 30 days from the date of this order and proceed with the trial without any unnecessary adjournments.

Copy of this order be handed over to the parties free of costs.

Copy of this order be also sent to the Ld. DCDRC, Coochbehar, for necessary information and compliance.