Haryana

Ambala

CC/156/2020

Krishan Lal - Complainant(s)

Versus

Central Bank of India - Opp.Party(s)

L.R. Saini

03 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	156 of 2020
Date of Institution	:	19.08.2020
Date of decision	:	03.02.2023

 

Krishan Lal son of Shri Bihari Lal resident of H.No.3857, Kacha Bazar, Ambala Cantt.

……. Complainant

                                                           VS

1. Central Bank of India, S.D. College Bank Branch, Ambala Cantt. through its Branch Manager.
2. New India Assurance Company Ltd. Ambala Cantt. Through its Branch Manager.

 

….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri L.R. Saini, Advocate, counsel for the complainant.

                   Shri Ankush Gupta, Advocate, counsel for the OP No.1.

                    Ms. Priya Sharma, Advocate, counsel for the OP No.2. 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

i) To return the amount received by OP No.1 by way of installments after the fire incidence along with interest

ii) To pay Rs.50,000/- as compensation, damages for suffering, special and general damages, and deficiency in service and unfair trade practice on the part of OPs.

iii) To pay Rs. 22000/- as litigation expenses

                             OR

                   Grant any other relief which this Hon’ble Commission may deems fit.

2.           Brief facts of the case are that the complainant had taken loan of Rs. two lakhs in the year 2007 from OP No.1 for renovation of his house under the scheme of Housing Loan vide account no.1852033937. At the time of taking the loan by the complainant, he mortgaged house i.e. 1/3 part of house no.3855-57, Kacha Bazar, Ambala Cantt vide mortgage deed bearing parlekh no. 3404 dated 21-03-2007 registered in the office of Sub Registrar, Ambala Cantt. The complainant repaid the loan amount on 15-01-2020 and OP No.1 also issued a clearance certificate dated 06-02-2020 in this regard. OP No.1 got the house of the complainant insured from the OP No.2 without the knowledge and information to the complainant on 25-05-2007 vide policy no.353501/11/07/11/00000266 dated 25-05-2007 valid up to 24-05-2022 and the policy was Standard Fire and Special Perils policy. On 3-10-2013, due to short circuit of electricity wire, fire occurred and the insured house was totally damaged including the shop which was existing in the house and the house became unfit and unsafe for human habitation. D.D.R. bearing No.12 (A) dated 04-10-2013 was also got recorded in the police station Ambala Cantt regarding the incidence of fire. This fact was also brought to the notice of OP No. 1 and the Manager of the OP No.1 also sent a employee to visit the house and to see the situation, but at that time, OP No.1 did not disclose to the complainant that OPs have got insured the house of the complainant from the OP No.2. At that time, OP No.1 assured the complainant that he will look into the matter and will help the complainant as he has suffered huge loss due to fire but no response was received by the complainant from the OP No.1 at that time. The complainant paid all the loan installments in time and even extra payment was made by him and repaid all the loan amount on 15-01-2020 before the time schedule. When OP No.2 issued clearance certificate on 06-02-2020 alongwith other documents of the complainant i.e. mortgage deed etc. then the OPs also handed over the insurance policy as detailed above got obtained by OP No.1 and issued by OP No.2   for the above said house for which loan was taken on 25-05-2007. On seeing this insurance policy, the complainant came to know about the said policy and when the complainant asked the OP No.1 regarding the policy, it started making excuses in this regard and even the OP No.2   also did not give any information to the complainant regarding the policy which proves deficiency in service and unfair trade practice on the part of OPs. In view of this policy, the complainant was entitled to the claim in respect of incidence of fire aforesaid but he was deprived of the same at the hands of the OPs. Had OP No. 1 disclosed regarding the policy at the time of issuance thereof or at the time of fire incidence, then the complainant ought to have moved application for claim and after the fire incidence, there was no question of depositing of the installments of the loan amount. Ultimately, the complainant got served a legal notice upon the OPs through his counsel requesting to look into the matter but to no avail.  Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, barred by limitation, not come with clean hands and concealed true and material facts etc. On merits, it has been stated that the loan account of the complainant was closed under OTS Scheme in 2019-20. Since the complainant was fully aware of the Insurance policy in question, as such, he cannot held the OPs liable for his own wrong. As per the terms of the sanction letter it is pre-requisite condition that property was to be got insured by complainant which was fully accepted by the complainant. The question of disclosing the policy does not arise at all, neither the same is required. The complainant is fully aware of the factum of insurance. The lapse if any is on the part of complainant and the complainant cannot be allowed to take the benefit of his own wrong. There is no knowledge of alleged fire incident as mentioned in the complaint, as it was not informed by the complainant. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with special costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, barred by limitation, estoppal, cause of action and territorial jurisdiction etc. On merits, it has been stated that it is the duty of the insured to inform the insurer in writing immediately upon the occurrence of any fire loss or damage in the event of any claim and the same has duly been incorporated in the policy conditions issued to the public at large. The terms and conditions cast a legal duty upon both the parties i.e. insurer and insured. There is more than 7 years delay in informing the incident and in claiming the loss from OP No.2, as such, the claim is hopelessly time barred. The complainant himself violated the terms and conditions of the policy and he is thus stopped from his own conduct to file/claim. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with heavy costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-11 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Saurabh Kumar, Branch Manager, Central Bank of India, Mahesh Nagar, Ambala Cantt. as Annexure OP-1 alongwith Annexure OP1/A to OP1/G and closed the evidence on behalf of OP No.1.  Learned counsel for OP No.2 tendered affidavit of Shri Mona Bagga, Divisional Manager/Authorized Signatory, The New India Assurance Company Limited, Ambala Cantt. as Annexure OP-2/A alongwith Annexure OP-2/1 to OP-2/5 and closed the evidence on behalf of OP No.2. 
6.           Learned counsel for the complainant submitted that by not disclosing the fact to the complainant that his house had been insured under insurance policy bearing no.353501/11/07/11/00000266 dated 25.05.2007 valid upto 24.05.2022 covering Standard Fire and Special Perils Policy as a result of which, the complainant was deprived of lodging claim in respect of the loss suffered by him in the fire which took place in his insured premises in the year 2013, the OPs indulged into unfair trade practice, negligent and are deficient in providing service.
7.           On the other hand, learned counsel for OP No.1 submitted that since the complainant failed to lodge his claim, in the year 2013, when the fire incident took place at his premises, despite the fact that he was aware of the fact that his premises were insured under the policy in question, as such, this complaint having been filed after a delay of about 7 years is liable to be dismissed being barred by limitation.
8.           Learned counsel for OP No.2 submitted that it was the duty of the complainant to inform OP No.2 in writing immediately upon the occurrence of alleged fire in his insured premises, in the year 2013, which he failed to do and because now more than 7 years have lapsed, as such, the claim of the complainant is not payable being barred by limitation. 
9.           Since the fact with regard to obtaining of loan of Rs.2 lacs by the complainant in the year 2007 from OP No.1 for renovation of his house and its repayment thereof are not in dispute, as such, the only question that falls for consideration is, as to whether, the complainant is entitled to get claim of the fire incident, which took place in the said house in the year 2013 under the policy in question or not? It may be stated here that the complainant in his complaint has stated that he could not lodge claim in respect of the fire incident which took place in his insured residence in the year 2013, because the fact of issuance of the insurance policy in question, in respect of his insured  residence stood concealed by the OPs and he came to know about this fact only in the year 2020, when he was handed over the documents including insurance policy bearing no.353501/11/07/11/00000266 dated 25.05.2007 valid upto 24.05.2022 covering Standard Fire and Special Perils Policy, in respect of his house,  upon closure of his loan account.  It is significant to mention here that we have gone through the documents placed on record which reveals that in the Loan Agreement dated 27.03.2007, Annexure OP-1/D, it has been clearly  agreed to by the complainant in Clause 5.1.h that the borrower/complainant shall be vigilant and shall see that the  property under the said loan is  duly insured against fire and other hazard and that in case of any amount becoming due under the insurance policy, the bank shall be entitled to receive the same and adjust it. Not only as above, even in the application for housing loan, Annexure OP-1/E, the complainant has clearly agreed that house/flat under the loan shall be insured against fire, riots, earthquake, flood, lighting etc. with usual bank’s clause for full value of property. This fact also finds mentioned in the Process Note for Housing Loan, Annexure OP-1/F. The complainant is signatory to all these documents. Thus,  the sole contention raised by the complainant to the effect that  the OPs concealed the factum of insurance of his premises  at the time of obtaining loan in the year 2007, as a result of which, he could not lodge claim in respect of the fire which took place in the insured house in the year 2013 being devoid of merit stands rejected.  It is therefore held that since the complainant being negligent has failed to file his claim within the period of limitation of 2 years from the date of cause of action i.e. from the date when the fire took place in the year 2013, as such, now this complaint having been filed in the year 2020 is barred by limitation.  Because it has been held above that this complaint is barred by limitation, as such, in our considered opinion, even then if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL NO. 2067 of 2002, decided 20 March, 2009,    wherein it was held as under:-           
   • If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside……”

 

10.           For the reasons recorded above, this complaint stands dismissed being barred by limitation, with no order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 03.02.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President