Haryana

Karnal

CC/277/2019

Smt. Kamla Devi - Complainant(s)

Versus

Kotak Mahindra Bank Limited - Opp.Party(s)

Surinder Singh Moonak

10 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 277 of 2019

                                                        Date of instt.20.05.2019

                                                        Date of Decision:10.06.2022

 

Smt. Kamla Devi, aged 62 years, wife of Shri Dharam Singh, resident of house no.189/12, Gharaunda, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Kotak Mahindra Bank Ltd., Sector-12, opposite Mini Secretariar, Karnal through its Branch Manager.

2.     Kotak Mahindra Old Mutual Life Insurance Ltd. (KLI), Sector 12, Karnal through its Manager.

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri S.S. Moonak, counsel for the complainant.

                    Shri G.S.Khillan, counsel for the OP no.1.

                    Shri Narinder Kumar, counsel for the OP no.2.

 

                    (Jaswant Singh President)

 

ORDER:   

                

                 The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the mother of Sanjay Pal son of Shri Dharam Singh who had got financed his Tata Ace (Chhota Hathi) bearing registration no.HR-45/B-2120 for an amount of Rs.2,90,000/- from the OP no.1. The said loan was taken on 24.12.2012 and maturity date was 24.11.2016 alongwith the said loan Sanjay Pal (since deceased) had obtained an insurance policy i.e. KCCP, policy no.F6, vide certificate no.21764 for Rs.2,90,000/- w.e.f.24.12.2012 the policy as linked with the loan amount. The installment of the said loan amount was Rs.8600/-per month. The complainant had paid extra premium of Rs.1965/- of the said policy issued by OP no.2. The OP no.2 is the sister concern of the OP no.1. From the very beginning Sanjay Pal had been paying the installments regularly of the said Tata Ace to OP no.1. The son of complainant died in a roadside accident on 13.12.2013. The deceased Sanjay Pal had paid 12 installments prior to his death. After the death of Sanjay Pal, complainant alongwith her brother Balraj approached the OPs and submitted all the relevant documents including claim form etc. and requested the OPs to waive off the balance loan amount, but OPs did not pay any heed to the request of complainant and pressurized the complainant and her brother to deposit the loan amount, failing which the vehicle in question will be snatched away. However, the official of the OPs did not allow the complainant to ply the vehicle on the road. Due to this illegal pressure complainant deposited a sum of Rs.56,000/- as full and final settlement of the loan amount in the month of October, 2016. The official of the OPs assured the complainant that they will issue the NOC very soon, but they did not do so. It is further averred that the loan amount was to be written off after the death of Sanjay Pal. The complainant had paid Rs.3,09,000/-+Rs.56,000/- which is to be refunded. The official of the OP no.1 has also not issued the requisite NOC of the said vehicle, despite the fact that entire loan amount has been cleared by the complainant by paying in cash through her brother. On the other hand, complainant is entitled to get benefit of the insurance policy for waiving off the entire loan amount but the official of the OPs did not adhere to terms and conditions of the said policy. The official of the OPs told the complainant that the policy benefit will be adjusted but nothing was done. Thereafter complainant served a legal notice on 11.05.2017 and reminder thereon through her counsel but it also did not yield any result. The OPs have neither settled the claim nor repudiated it. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; concealment of true and material facts and present complaint is hopelessly time barred as the cause of action has arisen on 13.12.2013 and the present complaint has been filed on 20.05.2019. On merits, it is pleaded that Sanjay Pal has got financed a vehicle bearing no.HR-45-B-2120 for an amount of Rs.2,90,000/- from the OP for a tenure of 48 months at a monthly installment of Rs.8600/-. The deceased Sanjay Pal was insured with the OP no.1. It is denied that OP no.1 has sister concern with OP no.2. Both OPs are separate entities. It is denied that complainant and her brother approached the OP for waiving of the loan amount after the death of deceased Sanjay Pal. Infact, no intimation regarding the death of deceased Sanjay Pal was given to the OP. However, some installments of the loan amount were deposited in the bank. An amount of Rs.80,015.26 is due towards the complainant which is not being deposited by the complainant. It is incorrect that OP ever threatened the complainant to snatch the vehicle. It is not within the domain of the OP to waive off the loan amount as it is concerned with the OP no.2. It is also denied that complainant was forced to deposit an amount of Rs.56000/- as full and final settlement whatever has been deposited under the agreement. If any installment has been paid, the same has been reflected in the statement of account of the vehicle financed. It is denied that OP assured the complainant to issue NOC. The NOC is only issued when the entire loan amount is paid off. It is incorrect that loan amount was to be written off after the death of Sanjay Pal. There is no deficiency in service on the part of the OP and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version stating therein that the policy obtained by the Member (late Sanjay Pal) is a Group Insurance Policy. As per policy contract, a group of members as specified by the policyholder availing any loan from the policyholder for specific purposes as specified in the schedule of the policy contract shall be covered by the OP under the Group Insurance Policy for the period and amount as specified in the certificate of Insurance issued to every such specified member. It is further stated that as a matter of practice and in accordance with the terms and conditions of the policy, the OP gets Death Claim Intimation of a member from the policyholder directly which is Kotak Mahindra bank Ltd. In the present case, the main allegations of the complainant are that the OPs have failed to settle the death claim of the complainant, inspite of sending a legal notice to the OPs. In this regard, OP submits that as per terms and conditions of the certificate of Insurance issued to the deceased member, the death claim has to be intimated to the OP alongwith the death certificate and relevant documents, but till date no claim has been received by the OP. Neither the death certificate of life assured was intimated through the policyholder nor any of the relevant documents have been submitted by the OP to provide any opportunity to evaluate the claim. However, complainant has not any of the requisite documents alongwith the present complaint. It is further stated that without submitting the claim with the OP, complainant straightway approached this Commission. Thus, the present complaint is premature. There is no deficiency in service on the part of the OP no.2 and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of legal notice Ex.C1, postal receipt Ex.C2 and Ex.C3, copy of reply of legal notice Ex.C4 and Ex.C5, copy of application by complainant to OP Ex.C6, postal receipt Ex.C7, copy of post mortem report Ex.C8, copy of detail of account Ex.C9 and closed the evidence on 16.12.2019 by suffering separate statement.

6.             In additional evidence, learned counsel for complainant has tendered copy of FIR Ex.C10, copy of challans Ex.C11 and closed the additional evidence on 07.04.2021 by suffering separate statement.

7.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of Samrat Singh, Branch Manager Ex.OP1/A, copy of foreclosure letter Ex.OP1/1, copy of statement of account Ex.OP1/2 and closed the evidence on 08.02.2021 by suffering separate statement.

8.             Learned counsel for OP no.2 has tendered into evidence affidavit of Shakn Ahmad, Deputy Vice President-Legal Ex.OP2/A, copy of Good Health Declaration Form Ex.OP-1, copy of certificate of insurance schedule Ex.OP-2, copy of legal notice Ex.OP-3, copy of reply to legal notice Ex.OP-4 and closed the evidence on 28.01.2021 by suffering separate statement.

9.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that Sanjay Pal (since deceased) had got financed his vehicle for an amount of Rs.2,90,000/- on 24.12.2012 with the OP no.1.  Said Sanjay Pal was also insured with the OP no.2 and in this regard he had paid extra premium of Rs.1965/-. During his life time Sanjay Pal was paying the installments regularly. Unfortunately, on 13.12.2013 Sanjay Pal died in a roadside accident. After the death of Sanjay Pal, complainant approached the OPs and submitted all the relevant documents including claim form etc. and requested the OPs waive off the balance loan amount, but OPs did not pay any heed to the request of complainant and pressurized the complainant to deposit the loan amount, failing which the vehicle in question will be snatched away. Due to this illegal pressure complainant deposited a sum of Rs.56,000/- as full and final settlement of the loan amount in the month of October, 2016. The official of the OPs assured the complainant that they will issue the NOC very soon, but they did not do so. He further argued that after the death of Sanjay Pal, complainant had paid Rs.3,09,000/-+Rs.56,000/-. Complainant made a request many times to refund the said amount and issue the NOC, but OPs failed to do so. Lastly, prayed for allowing the complaint.

11.           Per contra, learned counsel for OP no.1, while reiterating the contents of written version, has vehemently argued that present complaint is hopelessly time barred. Sanjay Pal had expired on 13.12.2013 and present complaint has been filed on 20.05.2019. After the death of Sanjay Pal, neither complainant nor any other legal heir has informed the OP with regard to his death. The loan amount Rs.80,015/-due towards the loanee. No full and final settlement has been taken place between the parties and lastly prayed for dismissal of the complaint.

12.           Learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that Sanjay Pal (since deceased) was insured with the OP. Till date no claim has been received by the OP. Neither the death certificate of life assured was intimated nor any of the relevant documents have been submitted by the OP to provide any opportunity to evaluate the claim. He further argued that without submitting the claim with the OP, complainant straightway approached this Commission. Hence, prayed for dismissal of the complaint.

13.           We have duly considered the rival contentions of all the parties.

14.           Admittedly, the son of complainant namely Sanjay Pal had obtained a loan from OP no.1 and he was insured with the OP no.2.

15.           The OP no.1 has taken a plea that the complaint is hopelessly barred by limitation, as the life assured had died on 13.12.2013 and the present complaint filed by the complainant is on 20.05.2019 i.e. after the gap of approximately six years.

16.           Now the question for consideration before us is that whether the present complaint is well within period of limitation or not?

17.           Limitation for filing a complaint has been described under Section 69 of Consumer Protection Act, 2019 which is reproduced as under:-

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.

 

18.           As per aforesaid Section of Consumer Protection Act, the limitation for filing a complaint is two years from the date on which the cause of action has arisen. In the present complaint, son of complainant was expired on 13.12.2013. During the period from the year 2013 to 2017 there is no correspondence between the parties. Complainant had sent legal notice to OPs in the year 2017. It seems that sending of legal notice by complainant to OPs in the year 2017 just to create the fresh period of limitation to file the present complaint. By only sending a legal notice, does not extend the limitation period. Moreover, there is no separate application, on the file to condone the delay or has not made prayer for condonation in  the complaint and no sufficient cause has been shown by the complainant for not filing the complaint within limitation period. Hence, as per the provision of Section 69 of Consumer Protection Act, 2019, the present complaint is hopelessly time barred and the same is liable to be dismissed.

19.           The next plea has taken by the OP no.2 is that the present complaint is premature as the till date no claim has been received by the OP. Neither the death certificate of life assured nor any of the other documents have been submitted by the complainant to provide the opportunity to evaluate the claim.

20.           The onus to prove her case lies upon the complainant. To rebut the plea taken by the OPs complainant has not placed on record any cogent and convincing evidence. Even in the complaint, the complainant has not mentioned the date on which she filed the claim with the OP. Hence, it has been proved on the record the complainant has not intimated the OP with regard to the death of her son. The claim of the complainant has not been repudiated by the OP till date. Hence, we are of the considered view that, at this stage, the complaint of complainant is pre-mature and act of the OPs not amounts to deficiency in service

21.            Thus, as a sequel to abovesaid discussion, we do not find any merits in the complaint and same is hereby dismissed. No order as to costs. However, complainant is at liberty to approach the OP no.2, for her grievances if so desired. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.06.2022 

                                                                     

                                                                President,

                                                    District Consumer Disputes

                                                    Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                    Member                 Member