ORDERS:
Charanjit Singh, President;
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 of the Consumer Protection Act (herein after called as 'the Act') against the opposite parties by alleging that Jatinder Singh husband of complainant during his life time had taken the life insurance policy from the opposite party No. 2 HDFC Ergo General Insurance company Ltd. (Sarv Suraksha Pro) a comprehensive Insurance plan vide policy No. 2950201077984700000. The maximum tenure of this policy was 36 months as this was provided with the loan and the opposite parties at the time of confirmation of policy stated that one time premium for this policy has been received by the complainant, hence not required to pay any additional premium and it was further stated that he has received an amount of Rs. 893/- towards premium for critical illness section of policy No. 2950201077984700000 issued to Jatinder Singh husband of the complainant for a period from 28.5.2015 to 27.5.2018. The opposite parties sanctioned the loan and issued the policy bearing No. 2950201077984700000 after verifying the documents submitted by deceased Jatinder Singh husband of complainant to the opposite parties. The complainant’s husband Jatinder Singh who expired on 15.12.2016 had nominated his wife for the insurance policy. After the death of Jatinder Singh, the complainant submitted the death claim to the opposite parties but the opposite parties refused to disburse the insurance claim of the deceased Jatinder Singh husband of the complainant. The opposite parties disbursed the insurance claim amount after decreed of the above said case but when the complainant inspected the bank account of her deceased husband and she was shocked as the complainant’s husband expired on 15.12.2016 but the opposite parties deducted the EMI against the loan of Rs. 8,636/- on 5.1.2017 and again on the same month of Rs. 8,636/- on 6.2.2017 was deducted from the account of deceased husband of the complainant which is fraud and cheating with the complainant and the opposite parties were fully aware about the death of husband of complainant. First installment as deducted by the opposite parties on 5.1.2016 of Rs. 8,636/- and second installment was deducted on 5.2.2016 of the same amount of Rs. 8,636/- and third installment was deducted on 5.3.2016 of amounting Rs. 8,636/-, Forth installment was deducted on 5.4.2016 and fifth installment was deducted on 5.5.2016, sixth installment was deducted on 6.6.2016, seventh installment was deducted on 5.7.2016, eighth installment was deducted on 5.8.2016, ninth installment was deducted on 6.9.2016, tenth installment was deducted on 5.10.2016, eleventh installment was deducted on 5.11.2016, twelfth installment was deducted on 12.12.2016 of the same amount of Rs. 8,636/-. After that the complainant’s husband expired on 15.12.2016 and same was informed by the complainant to the opposite parties but the complainant is unable to understand why the opposite parties intentionally played fraud with the complainant while the opposite parties fully aware about the death of the complainant’s husband hence under what capacity the opposite parties deducted Rs. 8,636/- on 5.1.2017 and again on 6.2.2017 Rs. 8,636/-. Even still the amount standing in the account of the deceased husband of complainant is i.e. Rs. 33,450/- and after adding the above two installments which the opposite parties wrongly deducted from the account of deceased husband of the complainant would be i.e. Rs. 50,722/-. The complainant is entitled for interest on above said amount as FDR which the opposite parties did not disburse alongwith compensation on account of harassment which the complainant faced due to this non performing of their duty in a proper way and the complainant after the death of her husband and after knowing the above said facts a number of times visited the office of the opposite parties but the opposite parties ignored to disburse the above said amount of Rs. 50,722/-. The complainant has prayed that the following relieves may kindly be granted to the complainant.
- The opposite parties may kindly be directed to disburse the above said amount of Rs. 50,722/- to the complainant immediately.
- The opposite parties may kindly be directed to pay compensation Rs. 20,000/- for causing harassment of the complainant as well as litigation to the tune of Rs. 15,000/-.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of death certificate of Jatinder Singh Ex. C-2, Self attested copy of Account statement Ex. C-3, Self attested copy of order dated 31.12.2021 Ex. C-4, Self attested copy of Legal notice dated 17.5.2022 Ex. C-5, Self attested copy of Receipt dated 17.5.2022 Ex. C-6, Self attested copy of Adhar Card of complainant Ex. C-7.
2 Notice of this complaint was sent to the opposite parties and the opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the present complaint is legally not maintainable being time barred and as such same deserve dismissal. The complainant was very well aware of the fact that the loan amount has been disbursed on 27.5.2015 and the husband of complainant died on 15.12.2016 and installments was deducted on January 2017 and February 2017, but the complainant did not choose to file complaint within the period of 2 years when alleged cause of action first arose to her. Further mere perusal of the complainant will reveal that she has failed to give any cause much-less to the satisfaction of this commission for delay in filing the present complaint and this commission also, while issuing notice to the opposite party No. 1, has not passed any such order to condone the delay. As such, the present complaint is liable to be dismissed. The complainant is estopped by her act and conduct from filing the complaint. Mr. Jatinder Singh approached the opposite party No. 1 for availing personal loan. Taking in to account the assurances given by the intended borrowers, the said loan was sanctioned to the tune of Rs. 2,50,000/- vide loan account No. 32823468. At the time of availing said financial assistance, the complainant executed several documents/ agreement in favour of opposite party No. 1. As per terms and conditions of loan agreement, the loan installments tenure was 5.7.2015 to 5.6.2018. The attested copy of loan application form moved by the complainant for availing said financial assistance is Ex.OP1/5, the attested copy of loan agreement executed by complainant is Ex. OP1/6, the attested copy of schedule is Ex. OP1/7. The complainant has not come to this commission with clean hands and she has concealed/ suppressed the material facts from this commission that she had already got the claim from insurance company and she had not paid the outstanding dues of personal loan availed by the deceased husband Jatinder Singh. The legal heirs are entitled to the estate of deceased Jatinder Singh and similarly the legal heirs are also liable to repay the debts of the borrower. The complaint is liable to be dismissed on the ground of non joinder of necessary parties. The complainant has not disclosed the details of other legal heirs of deceased borrower and in present complaint other legal heirs are not made party to the complaint. The borrower who is decreased husband of the complainant had agreed to the terms and conditions envisaged in the personal loan agreement. It is a settled position of law that this commission should not entertain and/ or interfere in the matter; where terms and conditions of the loan agreement has been duly agreed and binding between the parties. The present complaint is legally not maintainable in the present form and as such, the same deserve dismissal. It is legal duty of the complainant to repay the entire outstanding of the personal loan availed by the deceased borrower Late Sh. Jatinder Singh. As per foreclosure statement dated 1.2.2023 the total outstanding amount of Rs. 3,13,917/- stands due in the loan account No. 32823468. The copy of foreclosure statement is Ex. OP1/3 and copy of loan account statement is Ex. OP1/4. The complainant being one of the legal heirs of the deceased borrower also come under the definition of borrower as per the terms and conditions of loan agreement and the legal heir of the deceased borrower are liable to repay the dues against the loan account. As per definition of Borrowers which express shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include his/ her heirs, administrator and executors. Complainants claiming to be legal heirs of the deceased borrower are entitled to be estate of the deceased borrower and are also legally liable to repay the debts of the deceased borrower as well. Hence the present complaint is not maintainable against the opposite party No. 1. The complainant has alleged deficiency in service against the opposite party No. 1, however, complainants have completely failed to prove any deficiency in service on the part of the opposite party No. 1. The complex question of law and facts are to be decided in this matter which cannot be decided by this commission in summary proceedings and keeping in view the facts and circumstances, the present case be referred to the competent court of civil jurisdiction. The borrower had signed the loan agreement after understanding and admitting the contents of the same to be correct. The deceased borrower Jatinder Singh had signed the standing instruction debit authorization form dated 26.5.2015 at the time of availing loan facility and as per terms and conditions the EMI’s stands deducted from his bank account. Attested copy of SI Mandate is Ex. OP1/8. It is the legal duty of the complainant to repay the entire personal loan liability availed by the deceased borrower Late Sh. Jatinder Singh. The status of the bank account of deceased Sh. Jatinder Singh stands as ‘Blocked Dormant’. As per the opposite party bank process, the legal heir’s/ nominee is required to approach the concerned branch of the opposite party Bank to complete the formalities related to decease claim settlement of the account held in the name of deceased borrower. As per the opposite party Bank record, there has been no claim made by the complainant or any other legal heirs of the deceased borrower. The complainant/ legal heir’s shall approach the concerned branch of the opposite party bank to complete the formalities related to the settlement of funds lying in the saving account or any other account of deceased borrower and the opposite party Bank post adjustment of all the liabilities of the deceased borrower from the funds lying in the account of deceased borrower, would then settle the excess amount in favour of claimants. The complainant has failed to fulfill the formalities related to decease claim settlement. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
3 The opposite party No. 2 appeared through counsel and filed written version by interalia pleadings that the policy which was insured was not the life insurance policy and it was health insurance policy (general insurance policy, i.e. sarv suraksha) coverage of insurance duly mentioned therein. The sum insured against the critical illness coverage is Rs. 1,00,000/-, which has been duly paid by the opposite party No. 1 alongwith Rs. 10,000/- compensation and Rs. 7,500/- as litigation expenses, total amounting to Rs. 1,17,500/- to the complainant as per order of this commission dated 31.12.2021 in previous complaint filed by the complainant bearing No. CC/66/2017. As such there is no liability of opposite party No. 2 to make any payment as alleged in this complaint, therefore, present complaint is legally not maintainable and is liable to be dismissed. As per Sarv Suraksha Policy No. 2950 2010 7798 4700 000, the coverage of Critical Illness is Rs. 1 Lakh, hence we paid the insurance amount as per Policy. This fact was already mentioned in the written statement filed in CC No. 66/2017 decided by this commission on 31.12.2021. The opposite party had not acted in any arbitrarily manner in repudiation of the claim of the complainant. The opposite party had acted as per the agreed terms and conditions of the insurance policy and upon the conditions duly approved by the IRDA rules as mentioned in the circular Ref: IRDA/HLT/REG/CIR/146/07/2016. Therefore, there was no deficiency of service on the part of the opposite party. It is settled principle of law that insurance is a concept based on the principle of good faith and its benefit should be delivered to the person who needs it. The insurance is not meant to get onself enriched unjustly under the garb of insurance. The detailed examination of evidences and cross examinations are required for the just and judicious decision in this matter. Therefore, this matter can only be adjudicated upon in the concerned appropriate Civil Courts of law. Hence, the present complaint is liable to be dismissed by this Commission. The complainant has filed the present complaint without any cause of action against the opposite party No. 2, therefore, liable to be dismissed. The complainant has no locus standi to file the present complaint. The policy which was issued to the insured was not the life insurance policy and it was health insurance policy (general insurance policy i.e. sarv suraksha), coverage of insurance duly mentioned therein. The sum insured against the critical illness coverage is Rs. 1,00,000/- which has been duly paid by the opposite party No. 2 alongwith Rs. 10,000/- compensation and Rs. 7,500/- as litigation expenses, total amounting to Rs. 1,17,500/- to the complainant as per order of this commission dated 31.12.2021 in previous complaint filed by the complainant bearing No. CC/66/2017. As such, there is no liability of opposite party No. 2 to make any payment as alleged in this complaint, therefore, present complaint is legally not maintainable and liable to be dismissed. The opposite party No. 2 is denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 2 has placed on record affidavit of Lalit Kumar Manager, Legal Claims Ex. OP2/1, self attested copy of Power of attorney / authority letter Ex. OP2/2, Self attested copy of Policy Ex. OP2/3, self attested copy of terms and conditions Ex. OP2/4, self attested copy of order of this commission dated 31.12.2021 Ex. OP2/5, Self attested copy of payment made to the complainant in previous complaint Ex. OP2/6.
4 We have heard the Ld. counsels for the complainant and opposite parties and have carefully gone through the record.
5 Ld. counsel for the complainant contended that husband of the complainant during his life time had taken the life insurance policy from the opposite party No. 2 HDFC Ergo General Insurance company Ltd. (Sarv Suraksha Pro) a comprehensive Insurance plan vide policy No. 2950201077984700000. The maximum tenure of this policy was 36 months as this was provided with the loan and the opposite parties at the time of confirmation of policy stated that one time premium for this policy has been received by the complainant, hence not required to pay any additional premium and it was further stated that he has received an amount of Rs. 893/- towards premium for critical illness section of policy No. 2950201077984700000 issued to Jatinder Singh husband of the complainant for a period from 28.5.2015 to 27.5.2018. The opposite parties sanctioned the loan and issued the policy bearing No. 2950201077984700000 after verifying the documents submitted by deceased Jatinder Singh husband of complainant to the opposite parties. The husband of the complainant namely Jatinder Singh expired on 15.12.2016 and had nominated his wife for the insurance policy. After the death of Jatinder Singh, the complainant submitted the death claim to the opposite parties but the opposite parties refused to disburse the insurance claim of the deceased Jatinder Singh husband of the complainant. The said insurance claim was disbursed in the bank account of the complainant as ordered by this commission in pervious complaint. Ld. Counsel for complainant further contended that when the complainant inspected bank account of her deceased husband, she was shocked to see that the complainant’s husband expired on 15.12.2016 but the opposite parties deducted the EMI against the loan of Rs. 8,636/- on 5.1.2017 and again on the same month of Rs. 8,636/- on 6.2.2017 from the account of deceased husband of the complainant which is fraud and cheating with the complainant and the opposite parties were fully aware about the death of husband of complainant. First installment as deducted by the opposite parties on 5.1.2016 of Rs. 8,636/- and second installment was deducted on 5.2.2016 of the same amount of Rs. 8,636/- and third installment was deducted on 5.3.2016 of amounting Rs. 8,636/-, Forth installment was deducted on 5.4.2016 and fifth installment was deducted on 5.5.2016, sixth installment was deducted on 6.6.2016, seventh installment was deducted on 5.7.2016, eighth installment was deducted on 5.8.2016, ninth installment was deducted on 6.9.2016, tenth installment was deducted on 5.10.2016, eleventh installment was deducted on 5.11.2016, twelfth installment was deducted on 12.12.2016 of the same amount of Rs. 8,636/-. After that the complainant’s husband expired on 15.12.2016 and same was informed by the complainant to the opposite parties but the complainant is unable to understand why the opposite parties intentionally played fraud with the complainant while the opposite parties fully aware about the death of the complainant’s husband hence under what capacity the opposite parties deducted Rs. 8,636/- on 5.1.2017 and again on 6.2.2017 Rs. 8,636/-. Even still the amount standing in the account of the deceased husband of complainant is i.e. Rs. 33,450/- and after adding the above two installments which the opposite parties wrongly deducted from the account of deceased husband of the complainant would be i.e. Rs. 50,722/-. The complainant is entitled for interest on above said amount as FDR which the opposite parties did not disburse alongwith compensation on account of harassment which the complainant faced due to this non performing of their duty in a proper way and the complainant after the death of her husband and after knowing the above said facts a number of times visited the office of the opposite parties but the opposite parties ignored to disburse the above said amount of Rs. 50,722/- and prayed that the present complaint may kindly be allowed.
6 Ld. Counsel for the opposite party No. 1 contended that the present complaint is legally not maintainable being time barred and as such same deserves to be dismissed. The complainant was very much aware of the fact that the loan amount has been disbursed on 27.5.2015 and the husband of complainant died on 15.12.2016 and installments was deducted on January 2017 and February 2017, but the complainant did not choose to file complaint within the period of 2 years when alleged cause of action first arose to her. He further contended that the complainant has not filed any application to condone the delay. The complainant is estopped by his act and conduct from filing the present complaint. The husband of the complainant availed the loan to the tune of Rs. 2,50,000/- vide loan account No. 32823468. While getting the loan facility, the deceased executed several documents as per terms and conditions of loan agreement. Ld. counsel for the opposite party No. 1 further contended that after receiving the insurance claim, the complainant had not paid the outstanding dues of personal loan till date. It is the legal duty of the complainant to repay the entire outstanding of the personal loan availed by the deceased Jatinder Singh. Till date, total outstanding amount of Rs. 3,13,917/- stands due in the loan account No. 32823468. Ld. Counsel for the opposite party No. 1 contended that the status of the bank account of deceased Sh. Jatinder Singh stands as ‘Blocked Dormant’ and prayed that the present complaint may kindly be dismissed.
7 Ld. Counsel for the opposite party No. 2 contended that the policy which was insured was not the life insurance policy and it was health insurance policy (general insurance policy, i.e. sarv suraksha) coverage of insurance duly mentioned therein. The sum insured against the critical illness coverage is Rs. 1,00,000/-, which has been duly paid by the opposite party No. 1 alongwith Rs. 10,000/- compensation and Rs. 7,500/- as litigation expenses, total amounting to Rs. 1,17,500/- to the complainant as per order of this commission dated 31.12.2021 in previous complaint filed by the complainant bearing No. CC/66/2017. As such there is no liability of opposite party No. 2 to make any payment as alleged in this complaint, therefore, present complaint is legally not maintainable and is liable to be dismissed. Ld. Counsel for opposite party No. 2 contended that the opposite party had acted as per the agreed terms and conditions of the insurance policy and upon the conditions duly approved by the IRDA rules as mentioned in the circular Ref: IRDA/HLT/REG/CIR/146/07/2016. Therefore, there was no deficiency of service on the part of the opposite party and prayed that the present complaint may kindly be dismissed.
8 The combined and harmonious reading of documents and pleadings is going to prove on record that the husband of the complainant availed loan to the tune of Rs. 2,50,000/- from the opposite party No. 1. The husband of the complainant namely Jatinder Singh was expired on 15.12.2016. As per the complainant, when she inspected the bank account of her husband, she found that after the death of her husband the opposite parties have deducted the amount in the shape of installments from the loan account of the deceased. As per version of the complainant, still amount standing in the account of deceased is Rs. 33,450/- and after adding above two installments the total amount comes to Rs. 50,722/- as such she is liable to get Rs. 50,722/- from the opposite party No. 1. But we are not agreed with the complainant because the above mentioned installments were deducted in the year 2016 i.e. after the death of husband of the complainant. As such, the present complaint seems to be time barred.
9 It is pertinent to mention here that the complainant earlier filed one complaint before this commission titled as Ramneek Kaur Vs HDFC Bank and HDFC Ergo General Insurance Company which was allowed by this commission and opposite party No. 2 disbursed the insurance amount. The relief which she is claiming in the present complaint would have been sought in the previous complaint filed by the complainant mentioned above in complaint No. 66/2017 titled Ramneek Kaur Vs HDFC Bank. The reason known to her that why she has not claimed the said relief in that previous complaint. Once, a person rescind/left the claim in the previous complaint, same cannot be raised in the subsequent complaints, it is a settled preposition as per law. Moreover, as per version of the complainant, the opposite party No. 1 has deducted the amount in the months of January 2017 and February 2017, as such, the cause of action was arose in the year 2017 and the present complaint was to be filed within two years from the date of cause of action which has not been filed and the present complaint has been filed after the expiry of limitation period of two years. Hence the present complaint is barred by limitation.
10 Section 69 of the Consumer Protection Act, 2019 Limitation Period:- (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.
11 The provisions of Section 24A of the C.P. Act 1986 and now Section 69 of C.P. Act 2019, were interpreted by the Hon’ble Supreme in the judgment reported as “State Bank of India v. B.S. Agricultural Industries (I)” 2009 CTJ 481 (Supreme Court) (CP) in which it has been observed as under:-
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of Consumer cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. 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.”
12 This view of law was reiterated by the Hon’ble Supreme Court in its judgment reported as “V.N. Shrikhande (Dr.) v. Anita Sena Consumer Fernandes” 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon’ble Supreme Court as under:-
“Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768.”
13 Moreover, the complainant should have claimed all the relieves in the previous complaint, as such, the complainant is estopped by his act and conduct from filing the present complaint. Furthermore, it was the duty of the complainant to inform the bank authorities about the death of Jatinder Singh her husband. The Ld. Counsel for the opposite party No. 1 has placed on record a statement of account of Jatinder Singh which reveals that till date, the complainant has not cleared the loan amount. The person who comes to the Commission for seeking the relief, he/she should have come with clean hands before the Commission.
14 In view of the ratio of the law laid down in the above noted authorities and the discussion held above, the present complaint is not filed within limitation and same is hereby dismissed being barred by limitation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copy of order be supplied to the parties as per rules. File be consigned to record room.
Announced in Open Commission
25.10.2024
