DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 25/2016
Date of Filing: Date of Admission Date of Disposal:
18.01.2016 08.02.2016 12.04.2018
Complainant = Vs. = O.P.
Sri Amitava Acherjee, 1. Punjab National Bank,
S/o Sudhamay Acherjee, B A-1 Salt Lake, Sector-1
Residing at 61B, Abdul Fajal Kolkata - 700064
Apartment, 22, Basundhara 2. The Oriental Insurance
Enclave, Delhi – 110096 Co. Ltd, Division No. III,
25, Brabourn Road
Kolkata – 700001
P R E S E N T :- Sri Bankim Chandra Chattopadhyay………..…..President.
:- Sri Siddhartha Ganguli ………………………….Member.
:- Smt Silpi Majumder ………………………….Member.
Ld. Advocate for the Complainant :- Debabrata Bhattacherjee
Ld. Advocate for the OPs :- Shambhu Mahato &
Kamal Ghosh Dostider
Judgment and Final Order
An Application has been filed by the complainant U/S 12 of the Consumer Protection Act 1986 alleging deficiency in service on the part of the OPs and prays for compensation to the tune of Rs. 1,15,393.10 /- on account of loses caused by the OPs and also interest at the rate of 24% till the date of realization.
The brief facts of the Case of the complainant is that he had borrowed a housing loan from OP No:1 along with his wife, namely Mondira Acharjee, since deceased, vide A/C No. 095200NC00009040. The said loan A/C was insured by OP NO:2 being Policy No. 31103/48/POL/2007/MIG/46-211 and a premium of Rs. 31,041/- was debited from the A/C of the complainant being lifetime premium of the said policy.
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C. C. CASE NO. 25/2016
It is stated by the complainant that on 29.12.2008 the co-borrower of the complainant i.e. Mrs. Mondira Acharjee expired by a road accident and said policy was invoked by the OP NO:1 to the OP NO: 2.
Further it is the allegation of the complainant that the OP NO: 2, being the Insurance Company, without any rhyme and reason had taken about 14 months to make a payment of Rs. 8, 28,412/- only and the O.P No:2 on 12.02.2010 paid the said sum being 50% of the amount outstanding as on the date of cause of action i.e. 29.12.2008.
It is further alleged by the complainant that as the OP NO: 2 had admitted its liability and have insured the liability of outstanding in a Bank Loan A/C, then the delay of 14 months for disbursing the insurance money amounts to deficiency of service and due to such delay the complainant had suffered interest on the said sum of Rs. 8,28,412/- for a period of 14 months and thereafter suffering pendentilite interest on the liability of the OP NO: 2. The insurance claim has to be processed between the OP NO: 1 and 2 and the complainant has no role practically and due to delay caused by the OP No:2 in paying the insurance amount to the OP NO:1 the complainant cannot be suffered and therefore the complainant is liable to be compensated accordingly and the complainant therefore prays for a direction upon the OP: 2 to pay a sum of Rs. 115393.10/- on account of losses causes by callous and cavalier way of functioning of OPs without bothering for the losses of the claimant and pendentilite interest @ 24% till the actual date of realization.
The complainant along with his complaint petition files the following documents:-
- Copy of allotment of flat NBCC being Apartment no. E01.4
dated 01.07.2006.
2. Copy of passbook of PNB of Mondira Acharjee.
3. Copy of Insurance Policy (AWASIYA RIN BIMA KAVACH
POLICY) being No. 31103/48/POL/2007/MIG/46-211 of Oriental
Insurance Company Ltd.
4. Copy of Policy Schedule.
5. Copy of letter of Oriental Insurance Company Ltd. Dated 15.03.2010 addressed to the complainant.
6. Copy of e-mail correspondences – 5 pages.
7. Copy of death certificate of Mondira Acharjee.
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C. C. CASE NO. 25/2016
The complainant had filed this case before the District Consumer Disputes Redressal Forum, East Saini Enclave, Delhi and the same had been registered as CC 1115/2010. The said Consumer Complaint Case had been dismissed by the CDRF, East Delhi on 27.12.2010. The complainant then moved to the Hon’ble State Commission, Delhi and filed an appeal being No. F.A - 11/8 which was dismissed by the said Hon’ble Commission on 21.02.2011. Being aggrieved with the Order of the Hon’ble State Commission, Delhi the complainant then moved to the Hon’ble NCDRC, Delhi and filed one Revision Petition, being No. 1150/2011. Hon’ble NCDRC upon hearing of the revision petition has been pleased to remand back the case of the complainant to the District Forum, Saini enclave, Delhi with a direction to decide the case afresh after giving an opportunity to both the parties to adduce their respective evidences and as per the direction of the Hon’ble NCDRC the case has been reopened and the parties adduced evidences and the OPs filed a petition challenging the maintainability of the case on the basis of territorial jurisdiction. The CDRF of Saini Enclave, Delhi. upon hearing both sides held that the impugned policy on the basis of which claim has been filed has been issued from Kolkata Office and cause of action also arose there. It cited the case ruling of Hon’ble Supreme Court vide Judgment in Civil Appleal No. 1560/2004 titled Sonic Surgical vs. National Insurance had pronounced that complaint can be filed only at such place from where the policy had been issued, and in accordance with the said Judgment the CDRF,Saini Enclave, Delhi does not have any territorial Jurisdiction to adjudicate the case and therefore in the interest of justice the CDRF, Saini Enclave, Delhi returned the complaint petition with a direction to file it in a competent Forum of Jurisdiction within a specified time and accordingly the complainant lodged the case before this Forum on 08.01.2016.
Notices were issued against the OPs. The OP No. 1 and 2 appeared before this Forum on 18.04.2016 and the OP No: 2 filed one petition challenging the maintainability of the case. Upon hearing both sides the case was admitted and the petition of the OP No: 2 was turned down and the OPs were directed to file written version and as per the Order of this Forum OP No: 1 on 01.09.2016 filed one petition supported by an affidavit stating therein that the OP No: 1 had already filed written version in connection with this case and therefore the OP No: 1 does not wish to file Written Version afresh and wants to rely on the Written Version already filed.
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C.C. CASE NO.25/2016
It is seen from the case record that the OP No:1 i.e. PNB had filed W/V in connection with the C.C Case No. 1115/2010 when the case was pending before the CDRF, East Saini Enclave, Delhi.
The OP No: 1 denied all the material facts except admitted in the W/V and prayed for deleting the name from the cause title of the case as there was no claim made by the complainant against the OP, PNB Bank.
The OP No: 1 stated that as per the record of the Bank the complainant along with his wife had obtained a housing loan from this OP being A/C No. 095200NC00009040. It is further stated that the above mentioned loan was insured by OP No: 2 as per policy No. 31103/48/POL/2007/MIG/46-211. It is denied by the OP No: 1 that there was no delay on the part of this OP in processing the claim of the complainant.
The OP Bank has acted under the guidelines of RBI and there are no lapses on its part in processing the claim of the complainant.
The OP No: 2 filed W/V on 01.09.2016.
The OP No: 2 in its W/V stated that the contents and allegations mentioned in the complaint by the complainant are all false, incorrect and denied by the OP No:2 .The OP No: 2 further stated in its W/V that the complainant along with his wife Smt. Mondira Acharjee, since deceased, had borrowed a housing loan jointly from the OP No: 1 to purchase a flat from NBCC at Salt Lake Kolkata.
It is admitted by the OP No: 2 that the complainant had taken a policy for securing the risk of that loan for his newly allotted flat by NBCC from the OP No:2 in the scheme of Oriental Insurance- Vijaya Bank, Awasiya Rin Bima Kavach Policy vide. Policy No: 31103/48/POL/2007/MIG/46-211, where the premium is for one time during full tenure of loan for the period of 20 years and the petitioner took the policy on 16.02.2007 with a sum insured value of Rs. 46,19,000/-. The term of the Policy would be ended on 15.02.2027. It is also admitted by the OP No:2 that an amount of Rs. 31,041/- was collected as premium from the complainant’s loan A/C being A/C No. 095200NC00009040 of Punjab National Bank against the said Policy. It is further stated by the OP No:2 that the wife of the complainant, namely Mondira Acharjee, died in a road accident on 29.12.2008 and as per the terms and conditions of the said policy as laid down in Section II, Clause 4 that “ If the insured loanee(s) specified in the schedule shall sustain bodily injury solely and directly caused by accidental, violent, external and visible means resulting in death as stated hereinafter the company shall pay to the insured and/or his /her assignee, his /her legal representative the outstanding loan amount less amount ought to have been paid on the date of occurrence as per bank’s books of Account.”
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C. C. CASE NO. 25/2016
It is also laid down that “in case of more than one loanee in the policy the capital sum insured shall be divided equally between them.”
The OP:2 further stated that as per terms and conditions of the policy this OP satisfied the liability to the petitioner for a sum of Rs. 8,28,412/- as on 12.02.2010. The OP: 2 further stated that as per terms and conditions of the policy which was made at the time of signing the agreement, the OP was bound to take liability to pay the 50% of the amount of outstanding laid down in the Bank’s books of Accounts on the date of occurrence only. There was no Clause and/or agreement to pay Interest in the policy at all.
The OPNo:2 denied the allegations of the complainant totally because Bank industries are running under the R.B.I Guidelines where as Insurance industries are running under the I.R.D.A guidelines. Bank Loans and their rules and regulations are guided by R.B.I where rate of interest and default clauses are there but in the insurance sector there are no such clauses. In the insurance policies there are specially policy conditions are present. Not only that the instant petitioner must prove by documentary evidence that there was some latches on the part of the Insurer to make payment in delay. On the other hand it is an established fact that to settle a claim in a Govt. undertaking Insurance Sector the Claims Department have to overcome many steps to settle a Claim such as:-
- To receive a Claim petition from the party officially.
- To verify the policy as per claim petition.
- To collect the necessary documents from the party.
- To verify the documents by an investigator after appointing him to do so.
- The investigation report of that investigator must be there.
- To verify the report with the claim petition along with the policy conditions & documents.
- To collect the Bank Statements from the banker.
- To prepare a note sheet for sanctioning the Claim.
- To send the sanctioned claim to the Account’s department for disbursement of payment.
So many steps are required to be overcome in presence of hundreds of other claim files.
The OPNo: 2 further stated that the present petitioner was default in payment of monthly installment amount to the Bank and the said Bank charged the interest for default in payment of instalments as per terms and conditions between the parties which the petitioner trying to shift over the burden of that amount of liabilities upon this OP which is totally illegal and unethical and bad in law.
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C. C. CASE NO. 25/2016
The OP No:2 further stated in his W/V that the complainant had filed a petition before the District Forum, New Delhi being CC No 1115/2010, where the Ld. Forum dismissed the complaint petition on admission stage on 27.12.2010 and in that Order there was no whisper regarding the question of Jurisdiction.
OP No: 2 further stated that the complainant thereafter preferred an Appeal before the State Commission, New Delhi, being Appeal No. FA-11/8 dt. 21.02.2011 which was also dismissed inlimine and the observation of the Hon’ble State Forum is that the demand of interest made by the complainant was pre mature.
Again it is stated by the OP: 2 that the complainant thereafter preferred a revision application before the Hon’ble Nation Commission, being R.P No: 1150/2011 and the Hon’ble National Commission has been pleased to remand the matter to the District Forum, New Delhi , but in the observation the Hon’ble National Commission there was no whispering regarding Jurisdictional point. The OP No: 2 denied all the allegations leveled against him by the complainant and stated that there was no negligence or deficiency in service by the OP No: 2 and prays for dismissal of this complaint petition. The OP No: 2 along with his W/V submitted the copy of Insurance Policy, copy of Order Sheets and other related documents.
During hearing of the case the complainant filed affidavit-in-chief and the OP No: 2 also filed affidavit-in-chief. The complainant and OP No: 2 filed BNA.
From the complaint petition, W/V, evidence of the parties and other materials on record the following points have been framed.
- Is the complainant a consumer?
- Are the OPs deficient in service?
- Is the complainant entitled to get any relief or reliefs as prayed for?
-:Decision with Reasons:-
All the points have been taken together for the sake of brevity and avoidance of repetition of facts.
It is evident from the evidence of the parties that the complainant had borrowed a housing loan from OP No: 1 along with his wife, namely Mondira Acharjee, since deceased, vide A/C No. 095200NC00009040. The said loan A/C was insured by OP NO: 2 being Policy No: 31103/48/POL/2007/MIG/46-211 and a premium of Rs. 31,041/- was debited from the A/C of the complainant being lifetime premium of the said policy.
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It is also seen from the documents filed by the complainant that on 29.12.2008 the co-borrower of the complainant i.e. Mrs. Mondira Acharjee, the wife Amitava Acharjee, died in a road accident and as per the policy condition the OP No:2 was contractually liable to pay 50% of the outstanding loan amount as on the date of occurrence.
It is the allegation of the complainant that the OP NO: 2 , being the Insurance Company, without any rhyme and reason had taken about 14 months to make a payment of Rs. 8,28,412/- only and on 12.02.2010 the O.P No: 2 paid the said sum being the 50% of the amount outstanding as on the date of cause of action i.e. 29.12.2008 and the OP Bank charged interest and therefore he had to pay additional amount of Rs. 89,935/- (from the period from 29.12.2008 to 16.02.2010).
The complainant in his evidence has stated that as the OP NO: 2 had admitted its liability and have insured the liability of outstanding in a Bank Loan A/C, then the delay of 14 months for disbursing the insurance money amounts to deficiency of service and due to such delay the complainant had suffered interest on the said sum of Rs. 8, 28,412/- for a period of 14 months and thereafter suffering pendentilite interest on the liability of the OP NO: 2. The insurance claim has to be processed between the OP NO: 1 and 2 and the complainant has no role practically and due to delay caused by the OP No: 2 in paying the insurance amount to the OP NO: 1 the complainant cannot be suffered and therefore the complainant is liable to be compensated accordingly and the complainant therefore prays for a direction upon the OP: 2 to pay a sum of Rs. 115393.10/- on account of losses causes by callous and cavalier way of functioning OPs.
It is seen from the documents of the OP No: 1 Bank dated 21.07.2011 that the OP No:1 Bank has charged interest of Rs. 89,935/- on the amount of Rs. 8, 28,412/- from 29.12.2008 to 16.02.2010 and further charged interest of Rs. 12,783/- on 89,935/- from the period 17.02.2010 to 21.07.2011.
From the evidence of the OP No:2 it is seen that the OP No: 2 admitted that the complainant had taken a policy for securing the risk of that loan for his newly allotted flat by NBCC from the OP No:2 in the scheme of Oriental Insurance- Vijaya Bank, Awasiya Rin Bima Kavach Policy vide. Policy No. 31103/48/POL/2007/MIG/46-211, where the premium is for one time during full tenure of loan for the period of 20 years and the petitioner took the policy on 16.02.2007 with a sum insured value of Rs. 46,19,000/-. The term of the Policy would be ended on 15.02.2027.
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C. C. CASE NO. 25/2016
It is also admitted by the OP No: 2 that an amount of Rs. 31,041/- was collected as premium from the complainant’s loan A/C being A/C No. 095200NC00009040 of Punjab National Bank against the said Policy.
It is evident from the insurance policy as noted above that it is mentioned in Section II, Clause 4 that “if the insured with loanee(s) specified in the Schedule shall sustain bodily injury solely and directly caused by accidental, violent, external and visible means resulting in death as stated hereinafter, the company shall pay to the insured and/or his/her assignee his/her legal representative the outstanding loan amount less amount ought to have been paid on the date of occurrence as per bank’s books of account. Such injury shall within twelve (12) calendar months of its occurrence be the sole and direct cause of the death of the insured person (loanee).
If such injury shall within twelve (12) calendar months of its occurrence be the sole and direct cause of the total and irrecoverable loss of
- Sight of both eyes or of the actual loss by physical separation of the two entire hand or two entire feet or
- One entire-hand and one entire foot, or of 100% loss of sight of one eye and one entire foot or one entire hand.
TE:- For the purpose of clause (a) and Clause (b) above, physical separate means imputation at or above the wrist and that of the foot at or above the ankle respectively.
If such injury shall, as a direct consequence thereof, immediately, permanently, totally and absolutely disable the insured from engaging in any employment or occupation of any description whatsoever.
In case of more than one loanee in the policy the capital sum insured shall be divided equally between them.”
It is further seen from the evidence of the parties that the OP No: 2 satisfied the liability to the complainant for a sum of Rs. 8,28,412/- on 17.02.2010 as per the terms and conditions of the Policy which was made at the time of signing the agreement and the OP No: 2 paid 50% of the amount outstanding laid down in the Bank’s of A/C on the date of occurrence only. It is seen from the said policy that there was no clause or agreement made by and between the parties to pay any interest in the policy.
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C. C. CASE NO. 25/2016
It is admitted position that the complainant had taken a policy for securing the risk of that loan for his newly allotted flat by NBCC from the OP No: 2 in the scheme of Oriental Insurance- Vijaya Bank, Awasiya Rin Bima Kavach Policy vide. Policy No: 31103/48/POL/2007/MIG/46-211, where the premium is for one time during full tenure of loan for the period of 20 years and the petitioners took the policy on 16.02.2007 with a sum insured value of Rs. 46,19,000/-.
It is also admitted by the OP No: 2 that an amount of Rs. 31,041/- was collected as premium from the complainant’s loan A/C being A/C No. 095200NC00009040 of Punjab National Bank against the said Policy. Therefore, we hold the view that the complainant is a consumer under the OPs as per the definition given U/S 2(1)(d) of the C.P Act 1986.
Now in order to ascertain whether there was any deficiency of service on the part of the OPs or not we have to dive into the evidences of the parties and the materials on record. It is seen from the insurance policy that there is no specific clause embodied that the OP No: 2 shall have to pay interest for any delayed settlement of claim or delayed disbursement of insurance amount. But as per the IRDA guidelines the claim must be settled within a reasonable period of time. Further it is also true that in order to settle a claim the insurance company has to undergo various steps and several documents are required. There is no hard and fast rule for the purpose of settlement of claim; it depends upon case to case. If the claim petition has been filed belatedly or the documents required have been submitted much time later then the process of claim settlement must suffer and some delay will certainly cause but in such a case the insurance company cannot be held liable. In this case there is no document which suggests that the complainant filed the claim belatedly or the OP No: 2 raised the question that due to want of some documents the insurance company was unable to settle the claim within the shortest possible time.
As per the guidelines laid down, the insurance company is required to settle the claim within two months of the surveyor’s report. Inordinate delay may amount to deficiency in service, unless delay is properly explained. It is reported in the Judgment Polymat India(P) Ltd Vs National Insurance Co[(2005)9 SCC 174] that “there was delay in settling the claim based on fire Insurance Policy. Since the fire took place on 13.01.1993, the insurance company appointed the surveyor and the surveyor sent his report dated 05.11.1993 which was received by the appellant on 09.11.1993.Since there were some discrepancies in the survey report, the insurance company vide their letter dated 14.12.1993 sought clarification from the surveyor’s which was replied to on 22.04.1994 by the surveyor. The insurance company after that took the decision and informed the claimant vide their letter
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C. C. CASE NO. 25/2016
dated 01.07.1994 for approval of the claim for Rs.20, 23,899/ under both the policies. Therefore, the action taken by the insurance company was within reasonable time. On the factual matrix of the case it has been held that the insurance company cannot be saddled with a high rate of interest @ 18% and costs of Rs.10,000/. Of course, it is expected that the insurance companies would speed up disposal of claims in order to inspire greater confidence in them”.
No such plea has been taken by the O.P: 2 insurance company in this case. No explanation has been given by the O.P No: 2 insurance company as to why it took 14 months time to settle the claim of the complainant.
But as a matter of fact, the OP No.2 took time for about 14 months from the date of claim for the purpose of settlement of claim of the complainant which in our view the OP No: 2 caused some delay in settling the claim of the complainant and therefore the OP No: 2 is deficient to some extent and for that reason OP No: 2 is liable to pay compensation to the complainant.
Furthermore the claim has been settled as full and final because the complainant did not raise any protest while disbursing the amount in his bank account or soon thereafter. There is no specific clause in the said policy that the O.P No: 2 has to pay the interest charged by the O.P No: 1 for any delayed settlement of claim. Therefore, in our view the complainant is not entitled to get the sum which was charged by the O.P Bank as interest, as claimed by the complainant in his petition. We do not find any deficiency on the part of OP No: 1.
Considering the nature and gravity of the case and the mental agony, sufferings sustained by the complainant we quantify the compensation to the tune of Rs. 20,000/- and litigation cost of Rs. 10,000/-, totaling Rs. 30,000/- which the OP No: 2 shall pay to the complainant.
All the points have been elaborately discussed and disposed of.
The case of the complainant is succeeded but in part.
Hence
It is ordered that the Consumer Complaint being No. CC 25/2016 is allowed on contest against OP No: 1 & 2.
The OP N0: 2 is directed to pay compensation of Rs. 20,000/- and litigation cost of Rs. 10,000/- totaling Rs. 30,000/- to the complainant within two months from the date of this Order, in default the complainant is at liberty to put the order under Execution as per the Provisions of the C.P. Act 1986.
Let free copies of this Order be given to the parties concerned as per the provision of C.P. Rules & Regulations.
Member Member President
Dictated and Corrected by me.
Member
