SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986, (here-in-after called as the “Act”) alleging deficiency in service against the Opp. Parties claiming compensation.
2. The factual matrix of this case is that the complainant applied for sanction of a house building loan before OP No.3-Bank to purchase a flat at Jail Road, Balasore. OP No.3-Bank, after observing all formalities, on 30.11.2010 sanctioned loan of Rs.13,27,104/- in favour of the complainant. @ 11.04% per annum vide Loan A/c No.600533898 and the premium was fixed Rs.15,504/-. When the loan was sanctioned, OP No.3 stated to insure the loan amount. Accordingly, the complainant insured the loan amount with OP No.1 & 2 on the same day vide policy No.2918200040431600000. As per the policy condition, if the employee loss his job three EMIs will be paid by the Insurance Company to the complainant, but when the complainant stop/ break his service on 19.2.2013, the Insurance Company did not pay the EMIs which was fixed by the OP-Bank even on repeated requests. On 26.4.2013, OP No.1 & 2 issued a letter to the complainant for production of required documents for payment of EMI to which the complainant complied the same, but denied to disburse three EMIs vide their letter dated 12.6.2013. Now the complainant lost his job and unable to pay the instalments. Thus, non-payment of three EMIs by the OP No.1 & 2, the complainant suffered mental agony. The Ops intentionally harassed the complainant violating the terms and conditions of the policy and thereby they are liable for deficiency in service.
The cause of action for filing of the case arose on 12.6.2013, when the Ops denied to pay the claim amount. Hence, this case.
In support of his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-
- Photocopy of Papers relating to the job concerned of the complainant.
- Photocopy of Home Suraksha Policy Schedule.
- Photocopy of Certificate issued by the employer of the complainant.
- Photocopy of Letter dated 14.4.2013 issued by the Ops.
- Photocopy of Pay Slip (3 sheets) of the complainant.
- Photocopy of Letter issued by the employer of the complainant.
- Photocopy of Letter dated 12.6.2013 of the Ops repudiating the claim.
- Photocopy of Letter dated 26.4.2013 of the Ops requiring documents.
3. OP No.1 & 2 have filed a joint version challenging the averments made in the complaint and especially cause of action and maintainability of the case. They have stated, inter alia, that both the parties are guided by the terms and conditions of the Insurance policy. As per Section 5 of the Policy Act, the OP No.1 & 2 are not liable to pay any payment as the job in respect of the complainant is a casual, temporary, seasonal or contractual in nature or any claim relating to an employee not on the direct Roll of the employer. Here, in the present case, the complainant was not having a permanent job. Moreover, from the documents produced by the complainant, it can safely be presumed that the complainant was having a job of contractual/ casual in nature. Therefore, the claim of the complainant was rightly repudiated by the OP No.1 & 2.
In support of their case, the OP No.1 & 2 have relied on the following documents, which are placed in the record, as mentioned hereunder-
- Photocopy of Insurance policy terms and conditions.
- Photocopy of the claim form submitted by the complainant.
- Photocopy of Seafarer Employment agreement.
- Photocopy of letter dated 12.6.13 issued in favour of the complainant.
- Photocopy of Insurance Policy Schedule.
4. OP No.3, in his version, has specifically stated that obtaining of insurance policy is the discretional on the complainant and in this regard this OP No.3 has not insisted him to take insurance policy on the loan amount. Further, OP No.3 has not issued any insurance policy in question in favour of the complainant. That apart, OP No.3-Bank is a distinct and separate entity and is neither an agent nor a principal of the OP No.1 & 2. In the present case, the complainant has not claimed any relief against this OP No.3.
5. OP No.4 did not appear in this case even after receipt of notice issued by this Commission, hence, he was set ex parte.
6. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
7. Perused the documents filed on behalf of the complainant. Annexur-1 itself shows that the complainant was working under ISI International Shipping and Investments (Management) (I) Private Limited as Seafarer. It was agreed upon between the complainant and his employer that the employer is to provide salary as well as other remuneration and benefits such as leave and retirement benefits in favour of the complainant. It was also agreed that the Seafarer will serve on board the vessel specified in the Annex and/ or on board such other vessels as may be designated by the employer from time to time. On perusal of the Annex, which is a part of agreement, it is found that the complainant was first served for a period of five months on board from 6.11.2012. Annexure-2, the Home Suraksha Policy Schedule, shows that the OP No.1 & 2 issued the policy certificate bearing No.2918200040431600000 in favour of the complainant on 30.11.2010. The policy period as specified was from 30.11.2010 to 29.11.2015. As it is seen that the policy certificate was issued upon the loan sanctioned by the HDFC Limited (OP No.3), in whose favour the policy proceeds are assigned, and upon the loan A/c No.600533898. It is also found that the Insurance Company would pay 3 EMIs in case of loss of job, as mentioned in Section V of the policy condition. On the other hand, OP No.1 & 2 have also filed a bunch of documents relating to the job of the complainant and the policy schedule and terms and conditions of the policy in question.
8. At the time of hearing, learned counsel for the OP No.1 & 2 submitted that according to the guidelines mentioned in Clause-C of Item No.2 under the Exclusion applicable to Section 5, the Insurance Company shall not liable to pay in respect to any claim relating to unemployment from job which is casual, temporary, seasonal or contractual in nature or any claim relating to an employee not on the direct roll of the employer. Here, in the present case, the job of the complainant was not a permanent in nature, rather, his job was a contractual/ casual in nature. Therefore, the complainant is not entitled to the claim, as claimed for in this case. To substantiate their claim, OP No.1 & 2 has not produced or proved a single document that the job of the complainant was not permanent and it was a contractual or casual in nature. On the other hand, Annexure-3, the certificate issued by the employer of the complainant, shows that the complainant was engaged in different vessels from 3011.1998 in different Companies as SAA. The tenure of his service in different vessels and different Companies is indicated. Lastly, the complainant was engaged in the vessel namely NARA of Singapore Company as SAA from 7.11.2012 to 23.2.2013 i.e. for a period of 107 days. The OP No.1 & 2 gave much emphasis on the Annex under Annexure-C (Annexure-1) that the period of the employment was for five months from 6.11.2012, so the job of the complainant was not a permanent. Annexure-3 also speaks similarly that the complainant was engaged from 7.11.2012 to 23.12.2013 in the vessel namely NARA with Singapore Company. Further, on a careful scrutiny of Annexure-3, a prudent man can easily be learnt that the complainant was engaged in different vessels with different Companies as SAA for a specific period, not more than five months. Similar is the Annex under Annexure-1 (Annexure-C) supplied by the Employer in favour of the complainant before boarding a specific vessel and the tenure of service in that vessel is also notified for a specific period. From the above, it cannot be said that the job of the complainant is a casual, temporary, seasonal or contractual in nature. Moreover, OP No.1 & 2 have failed to produce a single document that the employer of the complainant was terminated him from his job violating the terms and conditions of the agreement for employment. Therefore, the claim of the OP No.1 & 2 that the complainant is not entitled to 3 EMIs as per Clause-C(2) under the Exclusion Applicable to Section 5 has no relevancy in the present facts and circumstances of the case.
9. Besides the above, it is an admitted fact that the OP No.1 & 2 have issued the Insurance Policy in question in favour of the complainant against the loan amount incurred by the OP No.3-Bank. Here, in the present case, the OP No.3-Bank is none else a sister concerned of OP No.1 & 2-Insurance Company. However, to substantiate their veracity, OP No.1 & 2 have not produced and proved the proposal form which might have submitted by the complainant at the time of purchase of Insurance Certificate in question. It is an admitted fact that the OP No.1 & 2 have issued the policy certificate (Annexure-2), It was the first and foremost responsibility of the OP No.1 & 2 to check the required documents thoroughly before issuing the policy certificate as per check list. At the time of proposal for purchase of Insurance policy, the complainant might have produced his employment certificate and the OP No.1 & 2 must have verified the same before issuing the Insurance Certificate and now what prevented them to disbelieve the nature of service in respect of the complainant. OP No.1 & 2 have not also stated a single line that they have not verified the documents produced by the complainant at the time of purchase of Insurance Policy in question. From the above, it is presumed that the Insurance Company was blind at the time of receiving the premium amount and required documents and when the time emerges for disbursement of the claim, eye of the Insurance Company opened. The Ops have also not produced any concrete investigation report in this regard. Therefore, withholding the claim form submitted by the complainant in respect to loss of job by the OP No.1 & 2 and not disbursement of 3 EMIs, as agreed upon by the complainant with OP No.1 & 2-Insurance Company is held to be arbitrary. Accordingly, both the OP No.1 & 2 are committed deficiency in service by repudiating the claim of the complainant.
10. Further, on a thorough perusal of the pleading of the complainant and taking into consideration the version submitted on behalf of the OP No.3, it is held that the OP No.3 & 4 have no role to play in the matter of disbursing the EMIs in favour of the complainant. Hence, they are not liable for the compensation claimed by the complainant.
11. From the above discussion made in the foregoing paragraphs, this Commission is of the considered opinion that the complainant has cause of action to file the case and the case is maintainable. The OP No.1 & 2 are held to be deficient in rendering their service by repudiating of the claim of the complainant in respect of the policy No.2918200040431600000 and thus, the OP NO.1 & 2 are jointly and severally liable to pay the compensation, as claimed for by the complainant.
Hence, it is ordered –
O R D E R
The case of the complainant be and the same is allowed on contest against OPs No.1 & 2 and dismissed on contest against OP No.3 and on ex parte against OP No.4. The OPs No.1 & 2 are hereby directed to pay a sum of Rs.46,512/- (cost of three EMIs) with interest @ 11.04% per annum from the date of actual cause of action till realization along with compensation of Rs.30,000/- towards harassment, mental agony and litigation cost to the complainant, within 45 days of from receipt of this order, failing which the complainant is at liberty to realize the same through the process of law.
Pronounced in the open court of this Commission, this the 23rd day of September, 2024 under my signature & seal of the commission.
