BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.343 of 2022
Date of Instt. 16.09.2022
Date of Decision: 01.12.2022
Smt. Sunita wife of Late Sh. Gulshan Kumar, resident of H. No. WJ-191, Ward No.44, Balmiki Mohalla, Basti Guzan, Jalandhar.
..........Complainant
Versus
1. Canara Bank through its Branch Manager, 3rd Floor, PUDA Complex, SCO-33, Ladowali Road, Jalandhar.
2. Canara Bank H. S. B. C. Oriental Bank of Commerce, Life Insurance Group, through its authorized signatory, 3rd Floor, PUDA Complex, SCO-33, Ladowali Road, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Bhanu Partap, Adv. Counsel for the Complainant.
OPs No.1 & 2 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the husband of the complainant namely Gulshan Kumar son of Tarsem Lal availed the facility of housing loan to the tune of Rs.9,10,000/- from opposite party No.1 and at the time of availing housing loan facility vide loan A/c No.268205000127 and as per the policy and guidelines of the bank and as per the instruction of opposite party No.1 also got insurance policy on the life of the husband of the complainant namely Gulshan Kumar having Master Policy No.GP000195-0297700 on 28.10.2020 through opposite party No.1 from opposite party No.2 and at the time of getting the life Insurance policy, as per the requirements of OPs, all the formalities were completed by the opposite party No.1 & 2 from the complainant and thereafter the policy was issued to the complainant and its validity commenced from 28.2.2020 onwards. At the time of availing the loan facility, the policy on the life of the husband of his client, in order to cover up the risk factor on the loan amount, the opposite parties issued a policy by guiding and suggesting the husband of the complainant that the life Insurance policy will cover the risk of loan amount if any kind of mis-happening will occur during the course of loan period to the policy holder/loanee. At the time of starting the policy the opposite parties assured that in case of any mis-happening with the policy holder, then the remaining loan installments will be stopped and the same will be recovered from the insurer of the policy holder and the claim on life of the policy holder will be disbursed to the legal heirs/nominee as per the sum assured on the life of the policy holder. Unfortunately, the husband of the complainant died on 10.11.2021 and the policy was in force at the time of death of husband of complainant. Hence, thereby the complainant is entitled to get the death claim of her husband as per the Life Insurance policy which was issued to the husband of the complainant. Due to the death of husband of the complainant, the complainant is under dire need of money as the husband of the complainant was only bread winner of the family and now there is no source of income for the complainant. As per the terms of Life Insurance policy, the complainant is entitled to claim the relief as per the terms of the policy and as per the policy, opposite party No.1 is not entitled to get the remaining loan installments from the complainant. The complainant is also entitled to get sum assured from opposite parties as per the terms of the policy. The complainant was not aware with the fact that the complainant has no need to deposit the loan installment but she has deposited two loan installments after the death of her husband, which are required to refundable to the complainant and later on came in the knowledge of the complainant that the complainant need not to deposit the installments as the risk was covered under the policy. The complainant approached opposite party No.1 and 2 many time to settle the claim of the Life Insurance Policy of her husband, but the opposite parties always lingering on the matter on one pretext or the other and has not settled the claim as per the terms of the policy which is against the law and public policy and hence thereby opposite party No.1 and 2 breached the terms of the policy on their part and has deficiency in service on the part of opposite party No.1 and 2. The act of the opposite party is entirely illegal and against the law and due to the said illegal and unlawful act of the opposite party, the complainant is suffering of mental tension, agony and harassment and there is no fault on the part of the complainant. A legal notice was served upon the OPs No.1 & 2 but the OPs did not bother about the legal notice and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to act as per the terms and conditions of the insurance policy of the husband of the complainant and further the OPs be directed to pay the damages to the tune of Rs.5,00,000/- due to deficiency in service and also to pay Rs.1,00,000/- on mental tension and agony caused to the complainant due to the harassment of the OP and also to pay Rs.25,000/- on account of litigation expenses.
2. Notice of the complaint was given to the OPs, but despite service all the OPs failed to appear and ultimately, all the OPs were proceeded against exparte.
3. In order to prove her respective version, the complainant alongwith her counsel produced on the file her respective evidence.
4. We bestowed our thoughtful consideration to the submissions made by learned counsel for the complainant and have also gone through the case file very minutely.
5. The complainant has proved that the husband of the complainant availed the facility of housing loan to the tune of Rs.9,10,000/- from the OP No.1 and at the time of availing housing loan facility, he also got insurance policy on his life having master policy holder MPH under certificate No.GP000195-0297700 from OP No.2. The validity of the insurance commenced from 28.02.2020 onward. The certificate of insurance has been proved by the complainant as Ex.C-6. The husband of the complainant died on 10.11.2021 and the insurance policy was in force at that time as the same was against the loan obtained by the complainant’s husband for Rs.9,10,000/-. The premium was paid as per Ex.C-6 and the cover the date of maturity was 28.02.2030. This shows that at the time of the death of the complainant’s husband, the insurance was in force. After the death of the husband of the complainant, the complainant deposited two installments of loan also wrongly as the entire loan was insured as per the insurance policy. The complainant approached the OPs No.1 and 2 number of times, but they instead of settling the claim started proceedings under the Sarfaesi Act against the loan account of the husband of the complainant on the ground that there is a default in making the payment. The complainant has also produced on record the documents, demand notice and letters issued under Sarfaesi Act.
6. So far as the claim of the complainant regarding issuing the directions to the OP No.1 to close the loan account of the husband of the complainant after recovering the remaining loan amount from OP No.2 is concerned, the same relief cannot be granted. As per the demand notice, the same was issued to the complainant on 11.07.2022 for non-payment of EMI installments towards the housing loan. Possession notice has also been issued by the Sarfaesi Authorities on 19.10.2022. The demand notice has been issued on 11.07.2022, whereas the present complaint has been filed by the complainant on 16.09.2022, meaning thereby i.e. after the receipt of demand notice from the Sarfaesi Authorities. As per Section-34 of Sarfaesi Act that 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 Authority in respect of any action taken 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 Institutions Act, 1993. As per Section-13 (3) (a) of SRFAESI Act, any security interest created in favaour of a secured creditor is enforceable without the intervention of any Court or Tribunal. It has been held by the Hon’ble Haryana State Commission in a Revision Petition No.85 of 2013, decided on 12.11.2013, titled as “Canara Bank Vs. Bhagwati Electronics & Anr.” which is as under:-
“Consumer Protection Act, 1986 Section 17(2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002-Section 34 Jurisdiction - Recovery of loan amount - Complainant availed cash credit facility from Bank on security of hypothecation and coverage of risk of stock - Bank had been getting the stocks insured and debiting premium amount in the account of complainant - Theft took place in insured shop Complainant approached opposite parties to indemnify the loss suffered by it He came to know that opposite parties had not taken new policy after 2010 Complaint filed before District Forum - During pendency of complaint complainant filed application for stay of recovery proceedings- Proceedings initiated against complainant under SARFAESI Act, 2002 for recovery of loan amount cannot be challenged before Consumer Fora - Remedy lies with Debts Recovery Tribunal by way of appeal section 34 of SRFAESI Act bars any other Court/Tribunal to entertain any suit/claim, etc. - Order under challenge in this revision is patently illegal.”
If any fraud is alleged only then the Consumer Commission or Civil Court has jurisdiction to entertain the complaint under the Sarfaesi Act, but in the present case, there are no allegations that any wrong has been done by the OP No.1.
7. The complainant has also proved on record the account statement Ex.C-10 which shows that this is the loan account of the husband of the complainant and the amount of installment was being deposited from time to time by the complainant’s husband and complainant and the same has been paid uptil 15.12.2021. The insurance has not been denied and as per schedule on the insurance cover Ex.C-6, the sum insured in the case of death of the loanee is Rs.8,31,389/- on 28.10.2021, but unfortunately death of a person is caused in between 28.10.2021 to 29.11.2021. In the present case, the person died on 10.11.2021. The OPs have not appeared in the Commission nor there is any such document to show that the complainant’s husband was having any pre-existing disease or any ailment which may violate or breach the conditions of the policy. Ex.C-9 is the certificate of the doctor showing the death summary which shows that he suffered cardiac arrest due to which he died and could not be revived. Since the facility of the loan was availed and the single premium was paid by the complainant’s husband on the basis of which the life of the husband of the complainant was insured and at the time of the death of the complainant’s husband, the policy was in force, therefore the OP No.2 is bound to pay the insured amount in the loan account of the husband of the complainant to clear the loan. Two installments have already been paid. In such circumstances, the OP No.2 is directed to deposit the insured amount as per the schedule mentioned in Ex.C-6 in the account of the husband of the complainant.
8. In view of the above detailed discussion, the complaint of the complainant is partly allowed qua OP No.2 and the same is dismissed against OP No.1. The OP No.2 is directed to deposit insured amount of Rs.8,31,389/- as per schedule of Ex.C-6 in the loan account of the husband of the complainant and balance, if any, is due, shall be paid by the complainant and further, OP No.2 is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.10,000/- and further OP No.2 is directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
01.12.2022 Member Member President
