Karnataka

Kolar

CC/47/2014

Smt. Jayamma, - Complainant(s)

Versus

Kotak Mahindra Bank Limited,& Ors. - Opp.Party(s)

C.S.Nagaraja

04 May 2015

ORDER

  Date of Filing:  22.09.2014

  Date of Order : 04.05.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

 

Dated   05^th  MAY 2015

 

PRESENT

 

Sri. N.B. KULKARNI                     …….                PRESIDENT

Sri. R. CHOWDAPPA                     ……..     MEMBER

 

CC No. 47 / 2014

 

Smt. Jayamma,

S/o. late G.N. Changalarayappa,

Aged about 40 years,

Agriculturist,

R/at. Honnikere Village,

Gudipalli Post,

Mulbagal Taluk,

Kolar District.

 

(By Sriyuths C.S. Nagaraja & N. Shekar Advs.) ……. Complainant

 

V/s.

 

 

 1. The Manager,

Kotak Mahindra Bank Limited,

Near Devegowda Petrol Bunk,

Banashankari III Stage,

Bangalore.

 

2. The Manager,

Kotak Mahindra Bank Limited,

# 3, Dass India Tower, I Floor,

2^nd Line, Beach Paris,

Chennai, Tamilnadu – 600 001.

India.

 

(By Sriyuths S.B. Muttalli & C.K. Nagendra Prasad, Advs. for OP.1 & 2)        

 

                                                                             …… Opposite Parties

 

ORDER ON I.A. No.1 UNDER SECTION 14 OF THE C.P. ACT & ON THE MAIN COMPLAINT

 

By Sri. N.B. KULKARNI,  PRESIDENT

 

This Complaint is filed by the Complainant against the OPs U/s. 12 of the Consumer Protection Act 1986 praying to pass an order directing the OP No.1 & 2 for issuing the death benefits of her husband G.N. Changalarayappa as per Kotak Kissan Suraksha Policy issued by them through oversight in favour of the co-borrower (the OP.4) and consequently to adjust the loan amount as raised by the deceased husband towards tractor engine (bearing Registration No. KA-07-TA-3316 as purchased from the OP.3) and also for compensation of Rs.1,00,000/- for the deficiency of service, as well, mental agony suffered by her.    

 

2. Pending the present proceedings on 17.01.2015 as the OP No.1 & 2 did seize the said tractor engine on 19.12.2014 from her possession I.A. No.1 under section 14 of the said Act came to be submitted.   The justification grounds have been urged by way of affidavit of the said complainant annexed to this I.A.  And on 31.01.2015 OP No.1 & 2 have preferred objections to this I.A.  And on 28.02.2015 the Learned Predecessor passed an order holding that this I.A. shall be considered on merits while passing the final order.

 

2.       The brief disclosure of averments in the complaint is as hereunder:

          It is stated that the complainant’s husband G.N. Changalarayappa (since deceased) on 30.11.2013 (it is stated as on 13.11.2013 but taken correctly read as 30.11.2013) by offering the OP No.4 as co-borrower  entered into loan agreement vide No.TFE2327871, and on granting of the required loan (in sum of Rs.3,00,000/- as per documents) did purchase the tractor engine from the OP No.3 which came to be registered vide KA-07-TA-3316 and consequently registration certificate came to be issued in the name of her said husband.   And that as per hypothecation the said vehicle was to stand in the name of the OP No.1.

 

          3. Further it is contended that while executing the relevant documents instead of the said deceased husband, name of the OP No.4 the co-borrower was shown as the Kissan Suraksha policy holder.   Further it is contended that, it was represented by the OP No.1 that the said personal insurance policy would stand in favour of R.C. Owner (Reliance placed on paragraph 5 & 4 of the complaint).   Further, it is contended in para.4 of the complaint that the said deceased husband had paid premium amount of Rs.4,546/-.    Further it is specifically contended in para.3 of the complaint that OP No.1 while issuing the insurance cover note and policy bearing No. 015276677000  name of her deceased husband G.N. Changalarayappa being the R.C. Owner came to be noted.

 

          4.  Further it is contended in para.4 of the complaint that wrongly mentioning OP No.4 the co-borrower as the insured was deficiency in service in as much as her said deceased husband being a farmer had no worldly knowledge.     Further it is averred in para.5 of the compliant that her said husband died on 09.05.2014 in the Government General Hospital at Mulbagal.   And that when she had approached the OP No.1 for the due benefits to adjust the loan outstanding in view of the said insurance policy, only evasive answer was awaited.   

 

          5. Further it is averred that for the legal notice served on the OP No.1 & 2, untenable reply was given.   So contending the complainant has come up with the complaint on hand to seek above set out reliefs.

 

          6. Along with the complaint with list, following nine documents have been submitted.

          1. The Xerox copy of loan agreement.

          2. The Xerox copy of Kissan Suraksha Policy.

          3. The Xerox copy of death certificate of complainant husband G.N. Changalarayappa.

          4. The Xerox copy of R.C. book.

          5. The Xerox copy of insurance policy.

          6. The Xerox copy of Tax invoice issued by the R.R. Tractors, Kolar.

          7. The Xerox copy of legal notice dated 25.07.2014.

          8. The Xerox copy of reply notice dated 04.09.2014 issued by the Respondent No.1 bank.

          9. The Xerox copies of postal receipt and acknowledgements.

 

          7. The OP No.1 & 2 have put in written version contesting claim of the complainant, at the outset contending that there was no relationship of consumer as the transaction was that of borrower and financier.    And that under the said agreement financial assistance in sum of Rs.3,04,546/- came to be given on said day and the loan amount was to be repaid in quarterly equated installments of Rs.32,650/- each for the duration of 12 installments commencing from 15.03.2014 to 15.12.2016.   In para.6 it is specifically contended that as the borrower G.N. Changalarayappa was aged 47 years , for date of birth mention in the application was 06.08.1966 and as age of the co-borrower V. Vijaya Kumar was 27 years, for, date of birth was on 02.05.1986 as disclosed in the loan application, insurance policy as was opted by both (borrowers ) to be in the name of the OP No.4 accordingly the insurance policy was issued.    And that if this aspect were to be incorrect the said deceased during his lifetime ought to have agitated the matter.   And that issuance of notice on 25.07.2014 by the complainant was unwarranted.    And that as per the statement of account dated 23.10.2014 the complainant being the legal heir of the deceased borrower was liable to pay sum of Rs.3,13,549.94 along with the OP No.4 being the co-borrower.   Thus, dismissal of the complaint was sought.

 

          8. Along with the written version the OP No.1 & 2 have submitted the following six documents.

          1. Loan application

          2. Loan agreement

          3. Insurance Policy

          4. Legal notice dated 25.07.2014

          5. Reply notice dated 04.09.2014 and

          6. Statement of account dated 23.10.2014.

 

          9. Both parties have put in affidavit evidence.  Both the Learned Counsel appearing for the complainant and the OP No.1 & 2 have submitted written briefs of arguments on their side.   Besides the Learned Counsel appearing for the complainant has submitted Xerox copies of ;

1). Special Medical Report Chart for proposal under Medical Category for all plans (regarding insurance) and

2). AIR 2012 SUPREME COURT 2881

On 29.04.2015 heard the Learned Counsel appearing for both sides, excepting the Learned Counsel appearing for the OP No.4, who submitted nothing.

 

          10. On the basis of I.A. No.1 and the assertions made in the complaint, resisted by the OP No.1 & 2 and evidence on either side on record the following points do arise for our consideration.

 

1. Whether I.A. No. deserves to be allowed?

 

2. Whether the Complainant proves deficiency in service on the part of the OP?

 

3. Whether the Complainant is entitled for the relief?

 

4. To what Order?

 

 

11.     Our findings to the above points are:

 

(i)      In the affirmative

 

(ii)     In the affirmative

 

(iii)     In the affirmative

 

(iv)    As per final order

 

REASONS

 

12.     Point Nos. (i) to (iii) – As these points do deserve common course of discussion and to avoid repetition in reasonings, the same are taken up for consideration at a time. 

 

          That the said G.N. Changalarayappa (since deceased) had availed the said loan of Rs.3,04,546/- as pleaded in para.4 of the written version of the OP No.1 & 2, and could purchase the Tractor engine bearing Registration No. KA-07-TA-3316 and for this the OP No.4 was co-borrower cannot be disputed.    Further it cannot be disputed that the said G.N. Changalarayappa (since deceased) was to repay the said loan in equated quarterly installments of Rs.32,650/- each by way of 12 installments commencing from 15.03.2014 to 15.12.2016 as averred in the said written version in the very same paragraph cannot be disputed.   It is also a fact that the said G.N. Changalarayappa died on 09.05.2014 as inpatient in Government General Hospital at Mulbagal.

 

          13. That during the lifetime this G.N. Changalarayappa had repaid the loan to the extent possible quarterly installments, admittedly is not an issue. 

 

          14. The only contention of the OP No.1 & 2 is that the said borrower G.N. Changalarayappa as on the date of application for loan was 47 years in age and the date of birth mentioned in the application was as on 06.08.1966.    Further, it is contended that on the other hand age of the co-borrower V. Vijaya Kumar (OP No.4) was 27 years as on the said application for loan in as much as date of birth mentioned was as on 02.05.1986, the OP No.4 was preferred while issuing the insurance policy.   And that the borrowers had opted for such issuance (Reliance placed on para.6 of the written version of the OP No.1 & 2).     If this stand is compared with the said Special Medical Report Chart as general guideline for issuance of insurance policies holding age as the criteria, even a person beyond 56 years could be considered, hence age of 47 years of the said G.N. Changalarayappa was not to come in the way so as to prefer OP No.4.  

 

15. Besides the Learned Counsel appearing for the OP No.1 & 2 relying on the averments made in said paragraph 6 of the written version as relied on recitals in page 6 of the said loan application which read thus:

 

“Whether Applicant would like to opt for Term Cover for group of borrowers Kotak Transport/SARAL/Kissan/Grahak Suraksha Cover offered by Kotak Mahindra Bank Ltd., under the Terms & Conditions of policy No. F3/F4/F6 as contracted by KMBL with Kotak Mahindra Old Mutual Life Insurance Limited”   √Yes    No

Whether applicant would like the premium to be funded by Kotak Mahindra Bank for availing benefit under Kotak Transport/SARAL/Kissan/Grahak Suraksha Cover”    √Yes    No

 

If Yes, Kotak Transport/SARAL/Kissan/Grahak Suraksha Cover is in the name of   Borrower    √ Co-Borrower   ”

 

          16. The said recital cannot stand even for a second for, the Certificate of Insurance and Policy Schedule Form 51 of the Central Motor Vehicle Rules, 1989 discloses that this policy bearing No. 015276677000 is to commence from 18.15 hours on 30.11.2013 and would expire on midnight on 29.11.2014, and name and address of insured has been mentioned as “G.N. CHANGALARAYAPPA S/O KURINARAYANAPPA, HONNIKERE (V), GUDUPALLI (P) MULBAGAL  - 563131 KARNATAKA”.   So, to the very admitted knowledge of the OP No.1 & 2 the insured was the said G.N. Changalarayappa none else but the person who had availed the loan.    When so, on demise of this person vide said terms and conditions of the insurance policy the legal consequences should flow in favour of the present complainant being the surviving legal heir as admitted by the OP No.1 & 2.

 

          17.  As such to contend on the part of OP No.1 & 2 that OP No.4 was the insured is false and untenable.   Assuming without admitting that the OP No.4 was the insured, then the very OP No.1 & 2 would be at error, for, it is not option of the borrowers to select as to who should be the insured and hence in this context by imposing such option on the part of the borrowers, the OP No.1 & 2 have made an attempt to override the law.   Even when of these borrowers, either of them or both were to express their desire opting OP No.4 to be the insured, the OP No.1 & 2 being the responsible financial institution ought to have guided these borrowers making them to realize that the main borrower would and could be the insured.     In the presence of their own said admitted document being the said Certificate, pleading resorted to by the OP No.1 & 2 that this factor of the said deceased then as 47 years in age and  the OP No.4 was 27 years  in age made them to prefer OP No.4 as the insured for which the said borrowers had opted is nothing but deception.   So, the OP No.1 & 2 are guilty of deficiency in service when the complainant made legally tenable approach seeking relief under the said insurance policy.

 

          18. Surprisingly, after the appearance and submission of the written version on 29.11.2014, these OP No.1 & 2 without even bringing to the notice of this Forum are guilty of seizing the said tractor engine on 19.12.2014.   Besides, viewed from any angle, such seizure is illegal, for, the OP No.1 & 2 vide insurance policy are legally duty bound to extend the benefit to this complainant, without creating any problem.    Consequently it is held that the OP No.1 & 2 are accountable as per the directions to be issued in the final order, which shall be as below.

 

 

19.     Point No. (iv) –  In the result, we proceed to pass the following order:

 

ORDER

 

1. I.A. No.1 Under Section 14 of the C.P. Act and the complaint are allowed with costs of Rs.2,500/- as against OP No.1 and 2 and dismissed with no costs against OP No.3 and 4.

 

2. The OP No.1 & 2 shall release the financial benefit in favour of the complainant in regard to the contended outstanding loan liability with regard to the said tractor engine bearing Registration No. KA-07-TA-3316 as per Certificate of Insurance and Policy Schedule Form 51 of the Central Motor Vehicle Rules, 1989 disclosing that this policy bearing No. 015276677000 is to commence from 18.15 hours on 30.11.2013 and would expire on midnight on 29.11.2014, and name and address of insured has been mentioned as “G.N. CHANGALARAYAPPA S/O KURINARAYANAPPA, HONNIKERE (V), GUDUPALLI (P) MULBAGAL  - 563131 KARNATAKA”

 

3. As a further legal consequence OP No.1 & 2 shall forthwith release the said Tractor engine bearing Registration No. KA-07-TA-3316 which is lying with Jugnu Associates, Vehicle Parking Yard (Reliance placed on list of documents dated 31.01.2015).
4. Since the complainant has been made to undergo agony for no fault of her and as she was deprived of physical possession of the Tractor engine on 19.12.2014, which event took place at the instance of OP No.1 & 2 without even caring to bring the same to the notice of the Forum, by following the principles enunciated in AIR 2012 SC 2881, we hold that  the OP No.1 & 2 shall pay compensation of Rs.10,000/- to this complainant. 

 

5. Send free copy of this order to both the parties.

 

Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, the 04^th May 2015.

 

 

 

 

           MEMBER                                         PRESIDENT