| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
C.C. No. 51 of 10-02-2012 Decided on 28-03-2013
Gurdeep Kaur Wd/o Hardial Singh R/o # 223, Kamla Nehru Colony, Near Bibiwala Chowk, Bathinda. ........Complainant Versus
ICICI Bank Ltd., 2928-E/34, Queensland Tower, Bibiwala Road, Branch Bathinda, through its Principal Officer/Branch Head. M/s Assets Reconstruction Company (India) Ltd., Arm Unit No.101,106, First Floor, Rajeha Arced, Plot No.61, Sector-11, CBD Belapur, Navi Mumbai-400614, through its Managing Director/General Manager /Company Secretary ICICI Lombard General Insurance, Power House Road, Bathinda.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President. Sh.Amarjeet Paul, Member. Smt.Sukhwinder Kaur, Member.
For the Complainant : Sh. Jai Gopal Goyal, counsel for the complainant. Counsel for opposite parties : Sh. Sanjay Goyal, counsel for opposite party Nos. 1 & 2. Sh. Vinod Garg, counsel for Opposite party No. 3.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that her husband raised housing loan and executed housing loan agreement bearing No.LBLUD00000352159, with the opposite party No. 1 and mortgaged house with it bearing No.223, Kamla Nehru Colony, Bathinda and deposited the title deed/sale deed as Collateral security in the said loan account. The husband of the complainant also took an another loan vide agreement No.LBBTN00001234527 on the basis of the same collateral security. Both the loan accounts were secured loan and was duly insured with the understanding that in case of death of the borrower, the amount of compensation of the insured/borrower shall be adjusted towards both the loan accounts. The borrower died leaving behind the complainant, entitled to succeed the estate of deceased husband. The loan amount stands repaid by adjusting the amount of the insurance claims towards both the loan accounts but the title deed has not been returned by the opposite parties to the complainant despite repeated requests and presentation of the death certificate, with the request to issue the account statement of both the loan accounts. The complainant applied for the information under the RTI Act vide registered application dated 12.5.2011, asking the opposite parties to provide; the copy of loan application regarding agreement Nos. LBLUD00000352159 and LBBTN00001234527; whether both the loans were insured; copy of the sale deed which was kept as equitable mortgage; what was the security/guarantee in both the loan accounts and on what basis the settlement was made in the said loan accounts and how much tentative amount is due and how much amount was adjusted towards the loan account by way of insurance compensation. The opposite parties instead of supplying the said information, returned the original application alongwith postal order of Rs.10/- vide their letter dated 25.5.2011 wrongly stating that the provisions of the RTI Act are not applicable to them. The complainant alleged that the opposite parties being the public company, cannot deny to provide information to their customers, so she is entitled to get all the above said information alongwith release of the title deed submitted by her deceased husband as collateral security in both the accounts alongwith the compensation. The complainant is also entitled for NOC, insurance policy, loan agreement, certified copy of account statement, detail of information sought by her under RTI Act. Since the entire loan amount stands repaid, it was the legal duty of the opposite parties to return the original title deeds to the complainant but they have not returned the same to her. Hence the complainant has filed the present complaint seeking directions to the opposite parties to return her original title deeds alongwith cost and compensation. The opposite party No.1 filed its separate written statement and pleaded that the complainant has concealed the material facts from this Forum while filing the present complaint as her husband had availed two loans from ICICI bank Bathinda, one loan was having loan account No.LBBTN00001234527 and other loan was having account No.LBLUD00000352159 and same property was mortgaged, out of which her husband defaulted in loan account No.LBBTN00001234527 and amount of Rs.5,48,084.65 is outstanding against installments and Rs.1,34,916/- is outstanding against other charges which has not been paid by the complainant and without the payment of the same no clearance certificate can be given to her. The opposite party No.1 has transferred the home loan account of the complainant in favour of the opposite party No.2 and an assignment deed to the said effect has duly been entered into between the opposite party No.1 and the opposite party No.2 whereby the opposite party No.2 has stepped into the shoes of the opposite party No.1 and has a right to recover the amount which was earlier payable by the complainant to the opposite party No.1 and the same is payable by her to the opposite party No.2. The loan was insured for the personal accident (free insurance) only subject to terms and condition but no claim was ever lodged with the insurance company nor it was intimated by the complainant that the deceased died due to accident. The opposite party No.2 in its separate written statement has pleaded that the complainant has concealed the material facts from this Forum that her husband had availed two loans from ICICI bank Bathinda, bearing account Nos.LBBTN00001234527 and LBLUD00000352159 and same property was mortgaged, out of which her husband defaulted in loan account No.LBBTN00001234527. The amount of Rs.5,48,084.65 is outstanding against installments and Rs.1,34,916/- is outstanding against other charges which has not been paid by the complainant and without the payment of the same clearance certificate cannot be issued to her. The opposite party No.1 has transferred the home loan account of the complainant in favour of the opposite party No.2 and an assignment deed to the said effect has duly been entered into in between the opposite party No.1 and the opposite party No.2 whereby the opposite party No.2 has stepped into the shoes of the opposite party No.1 and has a right to recover the amount which was earlier payable by the complainant to the opposite party No.1 and the same is payable by her to the opposite party No.2. The complainant never maintained the financial discipline as was expected from her as such the opposite party No.1 by exercising its rights under Clause 9.2(b) assigned her loan account to the opposite party No.2. The opposite party No.1, by exercising the said authorization had unconditionally and irrevocably assigned, transferred and released the loan account of the complainant in favour of the opposite party No.2 in its capacity as the sole trustee of 'Arcil Retail Loan Portfolio 001-J Trust' with all its rights, title and interest including the underlying security in the facility agreement, security documents and all other transactional documents relating thereto in terms of the Section 5 of the SARFAESI Act, 2002. The said assignment agreement was entered into between the opposite party No.1 and the opposite party No.2. The intimation regarding the said assignment was duly given to the complainant. The free accidental insurance facility was advanced with the loan account No.LBBTN00001234527. But in the event of the accident or accidental death, the nominee ought to have made a claim for the sum insured. In the present case, the nominee/claimant never approached the insurance company for the payment of sum insured. So far as the second loan account is concerned, the same was obtained at a different place and ICICI bank did not consider the two accounts as linked loan. Under such circumstances, the claimant/nominee was supposed to make two different claims for claiming sum insured in two different insurance policies. The opposite party No.3 has filed separate written statement and pleaded that this complaint is hopelessly time barred as the cause of action related to the year 2007 as the deceased Hardial Singh died on 30.3.2007, whereas the complaint has been filed in 2012. As per the terms & conditions of the policy claim had to be intimated within 3 months of the occurrence of event, failing which the insurance company is not liable to pay any claim. The complainant has concealed the fact that the opposite party No.3 has already paid Rs.2,04,570/- against the loan account No.LBLUD00000352159 vide cheque No.831918 to ICICI Home Finance Company Limited as the claim was intimated on 22.8.2007. As per the insurance policy bearing No.4005A/0000025 principal outstanding amount as on the date of death was insured/covered. Since no claim has been lodged with respect to other loan account No.LBBTN00001234527, hence there is no cause of action with respect thereto and the opposite party No.3 reserves its right to decide the said claim as and when lodged as per the terms and conditions of the said policy and law of limitation. Both the loans were duly insured with the opposite party No.3 but only to the extent of principal outstanding amount in the respective loan accounts as on the date of death of loanee. The opposite party No.3 denied that the insurance claims against both the loan accounts stand paid automatically on the death of loanee/insured. The opposite party Nos.1 and 2 on the one hand and the opposite party No.3 on the other hand are two independent companies and insurance claim if any had to be lodged within 3 months from the date of occurrence of the cause of action i.e. death, but no claim was lodged with respect to loan account No.LBBTN00001234527. The parties have led their evidence in support of their respective pleadings. Arguments heard. The record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that Hardial Singh, husband of the complainant had availed two loans from ICICI bank Bathinda, bearing account Nos. LBBTN00001234527 and LBLUD00000352159 and the same property was mortgaged against both the loans. The said Hardial Singh executed the loan agreements with opposite party No. 1. The opposite party No. 1 provided insurance against both the loans to said Hardial Singh, husband of the complainant. Hardial Singh died on 30-3-2007 and opposite parties closed his loan account No.LBLUD00000352159 by adjusting his insurance claim. The submission of the learned counsel for the complainant is that the opposite party No. 1 has adjusted the one loan account No. LBLUD00000352159 by adjusting the insurance claim of personal accident of Hardial Singh, deceased husband of the complainant but did not adjust the amount of personal accident compensation in the loan account LBBTN00001234527 by taking vague plea that it was not informed about the death of borrower and took the false plea regarding selling of assets to opposite party No. 2 by it. The learned counsel for opposite party Nos. 1 & 2 submitted that opposite party No. 1 has transferred the home loan account of the complainant in favour of opposite party No. 2 and an assignment deed to the said effect has duly been entered into in between the ICICI Bank Ltd., and the Asset Reconstruction Company (India) Ltd., and opposite party No. 2 has stepped into the shoes of opposite party No. 1 and has a right to recover the amount which was earlier payable by the complainant to opposite party No. 1 and now the same is payable by him to opposite party No. 2. He submitted that deceased husband of the complainant was having aforesaid two loan accounts mortgaging the same property but he has defaulted in loan account No. LBBTN00001234527 and amount of Rs. 5,48,084.65 is outstanding towards installments and Rs., 1,34,916/- towards other charges, so no clearance certificate can be given to him. The learned counsel for opposite party No. 3 raised issue regarding limitation by submitting that insured Hardial Singh died on 30-3-2007 and payment of insured amount against loan account No. LBLUD00000352159 was made in 2007, so as per law laid down in 2002(2) CLT 105, 2009(2) CLT 541, 2003(2) CLT 491 and 2011(1) CLT 262 (SC), the complaint is barred by limitation. He submitted that the opposite party No. 3 has already paid Rs. 2,04,570/- against loan Account No. LBLUD00000352159 vide cheque No. 831918 to ICICI Home Finance Company Limited. However, no claim was lodged with respect to other loan account No. LBBTN00001234527, so the opposite party No. 3 has a right to decide the said claim and as per terms and conditions of the policy and law of limitation, when lodged. He further submitted that both loan accounts were duly insured with opposite party No. 2 but only to the extent of principal outstanding amount in the respective loan accounts as on the date of death of loanee. The insurance claims against both the loan accounts do not stand paid automatically on the death of loanee/insured. Opposite party Nos. 1 & 2 on the one hand and opposite party No. 3 on the other hand are two independent companies and insurance claim if any had to be lodged within 3 months from the date of occurrence of cause of action, Since no claim was lodged with respect to loan account No. LBBTN00001234527, hence no cause of action arises against opposite party No. 3. The opposite parties have admitted that the opposite party No.1 has transferred the home loan account of the complainant in favour of the opposite party No.2 and an assignment deed to the said effect has duly been entered into in between the opposite party No.1 and the opposite party No.2. Hence. in such a way, the complainant was not party to the said assignment deed. The dispute in the case in hand is regarding loan account No. LBBTN00001234527 as the opposite parties have not closed the said loan account of the complainant on the pleading that the claim was not intimated to them. The opposite parties have stated that an amount of Rs. 5,48,084/- is outstanding towards installments and Rs. 1,34,916/- being other charges. A perusal of Group Personal Accident Insurance Policy Ex. R-27 reveals that the policy holder is ICICI Bank Limited and its Home Loan Customers and the insured persons are Home Loan Customers of ICICI Bank Ltd., Total 71550 persons are insured against Accidental Death as per details provided by the policy holder which in the said case is opposite party No. 1. The opposite parties have not stated that actually on what date the opposite party No. 1 has transferred the home loan account of the complainant to opposite party No. 2. Vide Ex. R-21 on 31st December, 2010, the opposite party No. 1 informed Hardial Singh, borrower, that w.e.f. 1st January, 2011 he will be liable to pay all dues to opposite party No. 3. The opposite parties have not placed any document on file to show that they ever intimated the loanee regarding default in loan installments. Thus, in such circumstances, the complainant might be of the opinion that since loan accounts of Hardial Singh were insured, both the loan accounts must be adjusted after intimation of death of opposite party No. 1. When the first claim was paid on account of death to borrower Hardial Singh, the plea of the opposite parties that claim regarding death of Hardial Singh regarding other loan account was not intimated i.e. why aforesaid loan account was not adjusted, is not tenable specifically when after adjustment of one of the loan account of the complainant, intimation in this context was given by opposite party No. 1 to the borrower Hardial Singh, so it cannot be said that the death of Hardial Singh was not in the knowledge of opposite party No. 1. As discussed above, the deceased husband of the complainant has executed the loan agreements with opposite party No. 1 and accordingly, he was bound by their terms and conditions and keeping in view such conditions, the death of borrower Hardial Singh was intimated by her wife i.e. complainant to opposite party No. 1 on the basis of which one loan account was adjusted , but the aforesaid second loan account was not adjusted on the baseless plea of non-intimation of death of Hardial Singh, hence this act of the opposite party No. 1 amounts to deficiency in service on its part. The opposite parties have admitted the insurance policy in question, but the plea of opposite party No. 3 is that as per terms and conditions of the policy, only principal outstanding as on the date of loss i.e. 30-3-2007 is covered. Keeping in view the facts and circumstances of this case, this Forum is of the considered view that if the loan account in question has been closed alongwith the aforesaid other loan account after adjusting the claim amount, then the other expenses i.e. interest etc., have not been accrued on the principal amount. It is not the case of the opposite parties that during his life time, the said Hardial Singh, has defaulted in any of the installments. The complainant has executed the loan agreements with opposite party No. 1 and opposite party No. 1 further executed the agreement for claims of loanees with opposite party No. 2 & 3. The borrower/complainant should not suffer for the lapse which has taken place on the part of the any of the opposite party i.e. either on account of non intimation by opposite party No. 1 or for intentionally not paying the claim by opposite party No. 3 despite the fact one insurance claim of the said Hardial Singh has already been adjusted by opposite party No. 3. Hence, the complainant is entitled to the closure of the aforesaid account without paying anything. The objection of the opposite parties that the complaint is barred by limitation is not tenable as the insurance of loan account is admitted fact and the amount is still outstanding against the complainant in the said insured account, hence there is continuous cause of action. The aforementioned authorities cited by the learned counsel for the opposite party No. 3 on this matter are distinguishable on facts. In view of what has been discussed above, this complaint is accepted with cost of Rs. 2,000/- against opposite party No. 1 and without any cost against opposite party Nos. 2 & 3. The opposite parties directed to close the loan account bearing No. LBBTN00001234527 of Hardial Singh, deceased husband of the complainant, without charging anything from the complainant. The opposite parties are also directed to issue NOC in this regard to the complainant and also handover her property documents which were mortgaged with them. The compliance of this order be made by the opposite parties jointly and severally, within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
Pronounced 28-03-2013 (Vikramjit Kaur Soni) President (Amarjeet Paul) Member (Sukhwinder Kaur)
Member
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