BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 107 of 2021.
Date of Institution : 31.05.2021
Date of Decision : 17.05.2022.
Parveen Rani widow of Late Shri Harish Chander, resident of Gali Dr. Dura Wali Bighar Road, Fatehabad. ……Complainant.
Versus.
1. Bank of Baroda, Bajaj Complex, Suratgadiya Chowk, Sirsa through its Branch Manager ( Now at Janta Bhawan Road Sirsa).
2. The National Insurance Company Ltd, First Floor LIC Building, Near Sangwan Chowk, Sirsa (Haryana)- 125055 through its Manager.
3. National Insurance Company Ltd., #3 Middleton Street Post Box No. 9229, Kolkata- 700071 through its General Manager/ Authorized Signatory.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SHRI PADAM SINGH THAKUR…………….PRESIDENT.
SMT. SUKHDEEP KAUR………………… MEMBER.
SH. SUNIL MOHAN TRIKHA……………MEMBER
Present: Sh. Anil Bansal, Advocate for complainant.
Sh. M.S. Sethi, Advocate for opposite party no.1.
Sh. A.S. Kalra, Advocate for opposite parties no.2 and 3.
ORDER
The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs) with the averments that complainant is permanent resident of Gali Dr. Duria Wali Bighar Road, Fatehabad. The complainant alongwith her husband late Shri Harish Chander applied for house loan to the op no.1 and op no.1 sanctioned an amount of Rs.10,00,000/- as house loan in their joint name. The said loan amount was also insured with op no.2 for the period w.e.f. 10.5.2012 to 9.5.2024 vide policy No.420700/48/12/9500000069 and complainant paid premium amount of Rs.4171/-. It is further averred that husband of complainant was a Govt. employee working in Income Tax Department and he was only the earning hand and was depositing the loan installments regularly during his life time. That on 10.02.2020 husband of complainant suddenly died and at that time he was on his duty. After death of husband of complainant, the loan installments were stopped due to the death of husband of complainant. The op no.1 got insured the loan amount with op no.2 for the above said period for the amount of Rs.10,00,000/-. The complainant has only one house in her name and she is house wife and has no other source of income. It is further averred that policy of ops no.2 and 3 covered the loan amount up to Rs.10,00,000/- due to accident under Suraksha Bima Policy and also physical accident. That since the husband of complainant died, the op no.2 is fully responsible to pay the balance payment of loan amount as per insurance policy to op no.1. It is further averred that op no.1 did not inform to op no.2 regarding death of husband of complainant despite of the fact that it is the responsibility of op no.1 to inform ops no.2 and 3 regarding sudden death. That as per statement of account of op no.1, the total balance amount of loan amount is Rs.3,95,000/- and overdue amount is Rs.1,25,000/- and an amount of Rs.102512.75 shown overdue vide letter dated 9.3.2021. The complainant has informed the op no.1 regarding death of her husband vide RTI application dated 12.2.2021. It is further averred that act of op no.1 is totally un professional as op no.1 instead of claiming the loan from ops no.2 and 3 has started claiming the same from complainant which is also unfair trade practice of op no.1 in connivance with ops no.2 and 3. That the above act and conduct of op no.1 regarding demand of EMIs of loan from complainant is totally wrong, unwarranted and illegal as ops no.2 and 3 are legally bound to pay pending loan EMIs of the loan and in this way, the act and conduct of ops have caused mental pain and agony to the complainant. It is further averred that when the ops did not listen to the complainant, she also got served a legal notice dated 26.2.2021 upon ops which was duly received by ops but they did not pay any heed to the same. Hence, this complaint.
2. On notice, ops appeared. Op no.1 filed written statement taking certain preliminary objections regarding no cause of action, no consumer dispute, concealment of true and material facts. It is submitted that complainant and her husband availed the house loan to the tune of Rs.10,00,000/- from op no.1. The complainant has mortgaged her house with bank as security for said loan. An amount of Rs.3,95,746.75 including interest up to 31.03.2021 is outstanding against them. They have failed to pay the same despite several requests and demand of op bank. Hence, op no.1 bank has issued a notice under Section 13 (2) of SARFAESI Act, 2002 on 16.04.2021 to the complainant who is owner of mortgage property. Complainant has concealed this fact from this Commission because she is knowing that this Commission has no jurisdiction to stay the proceedings launch under the SARFAESI Act. It is further submitted that complainant has informed to answering op regarding death of her husband after appearance of answering op before this Commission. First time, she represented in the bank on 8.6.2021 for filing the reply of notice issued under Section 13 (2) of SARFAESI Act. At that time on the demand of the bank, she provided copy of death certificate first time. It is further submitted that complaint is bad for mis joinder of parties. The answering op has unnecessarily been impleaded as a party in this complaint, the complaint is based on false and frivolous claim and it has been filed only to harass the answering op and that this Commission has no jurisdiction to entertain and try the present complaint.
3. On merits, while reiterating the above said pleas of preliminary objections it is also submitted that insurance was accidental insurance. The insurance policy was issued by op no.2 which is responsible for the payment of claim, if any. The op bank has issued overdue demand letter to the complainant on 9.3.2021, but complainant has never informed regarding death of her husband. Then answering op launched proceedings against the complainant and her husband for recovery of outstanding amount under the above said Act and issued a notice on 16.4.2021 to the complainant in this regard. Instead of providing information regarding the death of her husband, she has filed complaint before this Commission. After getting the stay order on the basis of false pleading, she filed reply to that notice on 8.6.2021. In that reply she has informed that her husband has died. On the demand of bank, she has provided copy of death certificate. She has not even informed to the answering bank regarding the death of her husband prior to 8.6.2021. It is also submitted that as per the provisions of Service Rules after the death of husband of complainant, she is getting the benefit of emoluments and salary of her husband till the age of retirement of her husband. After that she will be entitled for the pension benefit of her husband. It is further submitted that normal sudden death was not covered under the insurance policy issued by ops no.2 and 3. The cause of death has not been mentioned in the death certificate. However, on the request of complainant, answering op has forwarded their request to op no.2 vide letter dated 9.7.2021. The complainant is getting the regular salary of her husband even after his death and she has intentionally stopped the payment of the installments of loan amount. It is further submitted that insurance policy has been issued in favour of husband of complainant and as per contents of that policy in case of death of husband in accident, she will be entitled for claim of insurance but as per information provided by complainant, death of husband of complainant has not been caused in accident. It is further submitted that husband of complainant was insured under the Suraksha Beema Policy of Sh. Harish Chander by op no.2 which is responsible for issuing the claim in this regard on the entitlement of legal heirs of Sh. Harish Chander, if any. Moreover, answering bank is entitled to recover the outstanding amount by way of sale of mortgage property. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.1 made.
4. Ops no.2 and 3 filed written statement taking preliminary objections that complaint is not maintainable in the present form, that complainant has got no cause of action against answering ops for filing present complaint as policy has been got issued by op no.1 Bank of Baroda in the name of insured Parveen Rani wife of Sh. Harish Chander and Harish Chander since deceased covering the risk loss due to insured peril, to residential building to the extent of outstanding loan amount excluding unpaid installments and PA risk to the insured as per policy conditions of Home Loan Suraksha Bima Policy for total sum insured Rs.30 lakhs only and this policy was subject to cause “As per Home loan Suraksha Policy terms and conditions” having special condition “to the extent of outstanding loan amount excluding unpaid installments.” Personal accident to Smt. Parveen Rani or outstanding loan amount as on the date of death excluding the defaulting or overdue amount as reflected in the statement of account or Rs.10 lakhs whichever was less, was covered, and in case of personal accident to Harish Chander or outstanding loan amount as on the date of death excluding the defaulting or overdue amount as reflected in the statement of account of Rs.10 lakhs whichever was less, was covered. The policy has two Sections. Section-l covers the house against fire and allied perils including earthquake and Section-ll covers the borrower (or the joint borrowers) against personal accident. Claim under Section-l should be processed exactly like fire claim. In case of claim due to personal accident under Section-II would be used and it would be processed exactly like usual procedure for PA claims. Personal accident means (if the borrower himself met an accident due to external and visible means and consequently dies or suffers very serious injury, his capacity to pay the outstanding installments of the loan would be adversely affected.) The policy is non-life insurance policy. Personal accident to the borrower/ insured has been described in Section-II, which says ‘Default in repayment of loan due to bodily injury to the borrower named in the said schedule sustaining bodily injury solely and directly caused by accidental violent external and visible means resulting in death or permanent total disability”. That while explaining other conditions of notice of death/ incident to the insurance company and about exclusions clauses of Section-II it is submitted that deceased did not suffer any accidental injury, resulting into his death due to external injury received by him. According to the information furnished by police to the doctors, the deceased died due to “Achanak Ghabrahat or Dil ka daura padne ke karan”, thus death and cause of death as per information and contents referred and mentioned in the legal notice/ information received by company first time on 4.3.2021 and contents of DDR reflect and prove death of Harish Chander to be natural one and not because of any accidental injuries, thus not covered under the policy, hence claim, which has not been lodged uptill date either by the bank or by the family of deceased Harish Chander is not payable legally, contractually and factually. In case this Commission conclude otherwise considering the PMR reflecting awaiting of cause of death of Harish Chander, in that eventuality, complaint being pre-mature is also without any cause of action against answering ops and is liable to be dismissed. The ops no.2 and 3 have also taken preliminary objection that complainant is estopped by her own act and conduct to file the present complaint as she and bank op no.1 failed to lodge the claim within 12 calendar months and according to term and conditions of policy, present complaint is not maintainable. On merits, it is submitted that it is to be replied with documentary record by op no.1 bank about defaulting of installments during the life time of Harish Chander or by complainant and about the exact loan amount at the time of death shown in the bankers record after excluding the defaulting installments amount, as in case death of Harish Chander is proved to be way of accident, in that eventuality, answering ops/ insurance company cannot be held liable to make payment more than the amount shown outstanding at the time of death excluding unpaid installments, which otherwise is not payable, as it is not a case of personal accident as defined above in Section-II of the policy record. The pleas of preliminary objections are also reiterated and all contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Complainant has tendered in evidence her affidavit Ex.CW1/A, copy of policy schedule Ex.C1, death certificate of Harish Chander Ex.C2, copy of post mortem report Ex.C3, copy of DDR Ex.C3/A, copy of application under RTI Act Ex.C4, copy of legal notice to bank Ex.C5, postal receipt Ex.C6, copy of legal notice to ops no.2 and 3 Ex.C7, postal receipts Ex.C8, Ex.C9, letter of bank dated 5.3.2021 written to complainant in response to her RTI application Ex.C1, overdue demand letter dated 9.3.2021 Ex.C11 and delivery reports Ex.C12 to Ex.C14.
6. On the other hand, op no.1 has tendered affidavit of Sh. Satyavir Singh, Branch Manager as Ex.R1, copy of overdue demand letter dated 9.3.2021 Ex.R2, copy of letter dated 16.4.2021 Ex.R3, copy of legal notice Ex.R4, copy of letter dated 21.6.2021 Ex.R5, copy of application dated 29.6.2021 Ex.R6, (R7 not exhibited), copy of death certificate Ex.R8 and copy of letter of bank dated 9.7.2021 written to op no.2 Ex.R9.
7. Ops no.2 and 3 have tendered affidavit of Sh. V.K. Gumber, Senior Divisional Manager as Ex.R10, copy of statement of account Ex.R11 and copy of insurance policy Ex.R12.
8. We have heard learned counsel for the parties and have perused the case file carefully.
9. From the pleadings and evidence led by the parties the following points arises for determination:-
1. Whether this Commission has jurisdiction to try and entertain this
complaint against the opposite party No.1?
2. Whether the death of deceased Harish Chander was accidental death?
3. Whether insurance company is liable to indemnify the insured as per
terms and conditions of policy?
10. For the reasons to be recorded hereinafter, the answers of the above said points are as under:-
Point No.1 ………. No
Point No.2………..No
Point No.3……….No
Relief. The present complaint is dismissed as per operative part of the order.
Reasons and findings
Point No.1:-
11. Learned counsel for complainant contended that there was deficiency in services on the part of Ops No.1 to 3 and the bank has wrongly initiated the recovery proceedings against the complainant and insurance company (i.e. ops no.2 and 3) is liable to pay the remaining outstanding loan amount as well as overdue amount, if any to the bank due to the death of her husband.
12. The counsel for Op No.1 bank Sh. M.S Sethi contended that this Commission has no jurisdiction to entertain, try and decide the present complaint against op no.1 bank as the bank has already initiated the proceedings of recovery of loan amount and default amount and issued the notice under section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,(SARFAESI Act) to the complainant and prayed for dismissal of complaint qua op no.1 bank.
13. The perusal of the file reveals that op no.1 bank has issued notice under Section 13 (2) of the SARFAESI Act, 2002 to the complainant on 16.4.2021 for making default in repayment of home loan amount and informing the complainant that consequent upon the defaults committed by her, her loan account has been classified as non performing asset on 31.03.2021 and calling upon her to pay outstanding balance amount of Rs.3,95,746.75 with interest. So, the bank has already initiated the proceedings U/s 13(2) of the said Act for the recovery of outstanding loan amount and defaulting amount from the complainant before filing of the present complaint which has been filed on 31.5.2021. More so, after receiving of said notice by complainant from the bank, the complainant has also submitted her representation against the said notice to the bank, the copy of which has been placed on file by op no.1 bank as Ex.R4. So, the complainant has wrongly opted to initiate legal proceedings before this Commission, which has no jurisdiction to try and entertain the complaint. In this regard Section 34 of the SARFAESI Act, 2002 is reproduced as under:-
“ That No Civil Court not to have jurisdiction – No Civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action or to be taken in pursuance of any power conferred by or under this Act or under the recovery of Debts due to Banks and Financial Institution Act,1993.”
14. So, in view of the provisions of the SARFAESI Act, this Commission has no jurisdiction to try and entertain this complaint against op no.1 bank. Hence, the point NO.1 is decided against the complainant and in favour of Op No.1.
Points No.2 & 3.
15. There is no dispute of the fact that complainant alongwith her husband namely Sh. Harish Chander, obtained house loan from opposite party no.1 to the tune of Rs.10,00,000/- in their joint name. There is also no dispute of the fact that op no.1 got insured the said loan amount from opposite party no.2 & 3 for the period 10.5.2012 to 9.5.2024 vide insurance policy No. 420700/48/12/9500000069 under National Insurance Home Loan Suraksha Bima and an amount of Rs.4171/- as premium amount was paid to op no.2 by the insured for insurance of loan amount. According to the complainant, her husband late Shri Harish Chander was a Government employee and was working in Income Tax Department and he was only earning hand of the family and he was depositing the loan installments regularly during his life time. It is further case of complainant that on 10.2.2020 when her husband was on duty he suddenly died due to heart attack as per PMR Report Ex.C3 issued by the doctor and as he was only earning hand of the family, the loan installments were stopped and as the loan amount was got insured from ops no.2 & 3, therefore, insurance company is liable to indemnify the remaining loan amount. But however, contentions of learned counsel for complainant in this regard are not tenable on record.
16. The policy schedule, the copy of which has been placed on record by complainant as Ex.C1 and terms and conditions of policy placed on record by ops no.2 and 3 as Ex.R13 are being reproduced as under:-
“Covering Home Loan amount (Maximum) or outstanding loan amount whichever is less, Covering loss due to insured peril to residential building (above plinth) to the extent of outstanding loan amount excluding unpaid installment and PA risk to the insured.
17. From the above clause of Special Peril as mentioned in the policy schedule produced on record by complainant, it is evident that home loan amount was duly covered/ insured under the policy besides covering loss due to insured peril to residential building to the extent of outstanding loan amount excluding unpaid installment and PA risk to the insured. The ops no.2 and 3 in their written version have mentioned that Personal accident means if the borrower himself met with an accident due to external and visible means and consequently dies or suffers from very serious injury and his capacity to pay the outstanding installments of the loan would be adversely affected. According to learned counsel for ops no.2 and 3 as in the present case, the deceased Harish Chander admittedly died due to heart attack and not met with any accident, therefore, as per terms and conditions of insurance policy, ops no.2 and 3 are not liable to pay the outstanding loan amount to op no.1 under the National Insurance Home Loan Suraksha Bima as per Ex.R13 and Ex.C1 vide which the loan amount was covered with conditions “covering home loan amount (maximum) or outstanding loan amount whichever less, covering loss due to insured peril to the residential building(above plinth) to the extent of outstanding loan amount excluding unpaid installments and PA risk to the insured. The terms and conditions of the policy is also reproduced here under for ready reference:-
“The policy has two sections. Section-I covers the house against fire and allied perils including earthquake and Section-II covers the borrower (or the joint borrowers) against personal accident.”
18. Now, in the present complaint, the question arises whether the death of deceased husband of complainant, late Sh.Harish Chander is accidental or natural death. The counsel for OP No.2 and 3 contended that the death of Harish Chander was natural death and therefore, the insurance company is not at all liable to indemnify the outstanding installments of the loan amount and prayed for the dismissal of complaint. He has further contended that the claim in this regard has been rightly declined by the Ops No.2 & 3 and he has also relied upon the judgment of Hon’ble Supreme Court of India in case titled as Smt. Alka Shukla vs. Life Insurance Corporation of India, 2019(3) Civil Court Cases 773 (S.C.) in which our Hon’ble Apex Court has held as under:
“ Consumer Protection Act,1986, S.23- Accident- Insurance claim- Accident benefit cover- Assured died as a result of a heart attack which was not attributed to accident- No evidence to show that any bodily injuries were suffered due to fall from motor-cycle or that they led to assured suffering a heart attack- Even there is no evidence to show that accident took place as a result of any outward, violent and visible means- In order to sustain a claim under accident benefit cover, there must exist a proximate causal relationship between accident and bodily injury, which is absent in the case- No post mortem of deceased or police investigation was conducted- Award of compensation in terms of accident benefit held, rightly set aside.” ( Paras 10 to 13) .
19. In the case in hand, the death of Late Sh.Harish Chander was due to heart attack as per post mortem report Ex.C3, which is not an accidental death as per terms and conditions of policy. The complainant was to prove that the deceased has died due to bodily injury by external/ outward, violent and visible means and the death due to injury sustained was a direct proximate cause of her husband’s death. But it is an admitted and proved fact on record that death of deceased Harish Chander was not due to accident and was due to heart attack. More so, as per Section-II of the terms and conditions of policy, default in repayment of loan due to bodily injury to the borrower named in the said schedule sustaining bodily injury solely and directly caused by accidental, violent external and visible means resulting in death or permanent total disability only is covered. So, in view of the law laid down by Hon’ble Apex Court, since the death of deceased was not due to personal accident, therefore, the insurance company is not liable to indemnify the complainant. Hence, the points No.2 & 3 are decided in favour of Ops No.2 & 3 and against the complainant. Keeping in view the findings on points no.2 & 3, the insurance company is not at all liable to pay the outstanding loan amount to op no.1 as the death of the deceased was not accidental as per terms and conditions of policy and as per law laid down by our own Hon’ble Apex Court.
20. In view of our above discussion, we dismiss the present complaint against the opposite parties with no order to costs. However, the complainant is at liberty to approach the competent court of law for redressal of her grievances. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced : Member Member President,
Dated: 17.05.2022. District Consumer Disputes
Redressal Commission, Sirsa.
